To reject an applicant on failing the PIC 4020 provision there just needs to be one piece of evidence no matter its truthfulness, to reject the file.
If an incorrect answer is given, the applicant must as soon as practicable notify the department in writing of the incorrectness and of the correct answer. (The event that triggers the operation of s105(1) is the applicant becoming aware of the incorrectness of the answer or information.)
Under policy, applicants may notify the department in writing by completing the form 1022 (Change of circumstances) that is used for s104 purposes.
An (incorrect) answer to a question is incorrect even if the applicant did not know that it was incorrect.
The applicant's legal obligation to comply with s101 (and s105) is not affected by the fact that the department might have that information.
Making a statement that is false or misleading in a material particular is an offence under the Act.
It doesn`t matter if you are aware of the error made or not, it can still be considered as false of misleading.
In other words a DIAC staff member or some member of the public only has to make some accusation against an applicant and this can be qualify as evidence, no matter how unsubstantiated, poorly prepared or ridiculous that allegation is. This can then be used by a case officer to justify a rejection.
It seems lately that it doesn't matter about the facts surrounding the allegation, once the case officer doesn`t like you and doesn`t believe you, then your position is hopeless.
Once applicants find themselves rejected under 4020 they can appeal to the MRT (if appeal rights exist) and then it will then fall upon the tribunal member to assess if you are telling the truth. Again if they don't like you or believe you then your case can fail.
Migration Alliance which has thousands of professional Migration Agents as members is also aware of the growing pattern of abuse of the 4020 PIC to reject applicants. Christopher Livingston from Migration Alliance had this to say about PIC 4020;
"There is evidence building that with increasing frequency DIAC prefers to use PIC4020 as a means to the end of visa refusal. Absent any evidence, in a legal sense, the resort to PIC 4020 in effect permits DIAC to refuse a visa based on an allegation of misconduct. This approach permits the making of unsubstantiated allegations and an attempt to shift the onus of proof without the traditional controls associated with allegations associated with "bogus documents" and false and misleading statements.
The whole notion of "materiality" seems secondary to the desire to refuse on any basis as opposed to a proper and genuine consideration" of a case on its merits."
Two Examples of recent rejections using 4020
Two recent cases have come to our attention where 485 applicants have been rejected by DIAC using the 4020 provision. They both involve applicants who have nominated trade occupations, one as a Cook and one as a Hairdresser.
In both of these cases DIAC visited the work place some years after the visa applicants worked there and showed the owners copies of the applicants passport page however the owners could not be confidently identify the applicants from the photo presented to them. In both cases the passport photo was quite old and the applicant had significantly changed in appearance.
In an opportunity to respond before a rejection decision was made on PIC 4020 grounds, DIAC then put this information to the applicants.
In both cases the applicants went and spoke to their previous employers who then apologized for not recognizing the old passport photos DIAC showed them. Both employers then wrote letters saying they had recently met their old staff and could now with confidence confirm their identities as having worked in their jobs. Both business owners pointed out to DIAC that it was more that 2 years had passed since they had seen these workers and the photos shown by the DIAC officers were seemingly quite old.
This information was supplied to both separate case officers but both of them refused to give weight to the owners statement and rejected the files anyway saying they had reasonable grounds to believe false and misleading information had been supplied. In other words they were not really interested in the responses for they had already made up their minds of the outcome and giving the applicant the opportunity to respond was just procedure.
Both files have now been lodged to the Migration Review Tribunal where the applicants will have to wait another 18-24 months before a decision can be made.