Strategies on beating an adverse PIC 4020 finding

It is often said that the weight to be given to evidence it a matter for the tribunal or the decision maker at first instance. But as always any weight that the tribunal gives to a matter must be done in a manner which is consistent ‘the rules of reason’. Similarly the fact finding process needs to comply with ‘the rules of reason’.

The recent Federal Court decision of Khakpour v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 617, illustrates this point quite aptly. (https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2022/617.html)

The case also illustrates the point that if it be accepted that a particular witness’ evidence is unchallenged then that evidence becomes evidence of clinical facts.

The facts were that a visa applicant had tampered with his academic record from a University in Tehran regarding a bachelor degree although he also had a Masters of Science in Information Technology Management from an institution in Malaysia. In relation to that Masters, the Federal Court said, “It is not suggested that that qualification is false.”

In effect the visa applicant had asserted he had a bachelor degree when he had not completed it, produced bogus documents regarding the degree and the transcript and as a result had his subclass 457 visa was cancelled.

In the meantime he had applied for subclass 820 partner visa and that was refused because he did not meet 4020(1), which states:

(1)  There is no evidence before the Minister that the applicant has given, or caused to be given, to…, an officer,… a bogus document or information that is false or misleading in a material particular in relation to: 

(b)  a visa that the applicant held in the period of 12 months before the application was made.

The false information of course was the false bachelor degree documents  used for the previous visa held, the subclass 457 visa.

However the AAT erred in its consideration of the waiver and whether there were “compassionate or compelling circumstances that affect the interests of.., an Australian permanent resident,”, in case the person is his wife.

The AAT unreasonably examined the ‘compassionate or compelling’ circumstances. Basically it had unreasonably under valued the effect on the wife of applying PIC 4020 to the husband.

Another issue was the wrong consideration by delegate in cancelling the subclass 457 visa that the visa holder would not have been eligible for the visa because the incorrect information had been supplied by the visa applicant regarding the bachelor degree.

But the applicant also had a masters degree in IT so would have met the requirements for skills and work experience. This was ignored by the AAT. This would have amounted to a compelling circumstance.

As always, taking on visa refusals based on PIC 4020 to the AAT on merit review requires a very careful analysis of the actual material which activates PIC 4020 and then very carefully mounting a case under the ‘compassionate or compelling’ heads.