Partner visas: Fraud and PIC 4020 refusals, and a mysterious points tool

Partner visas, which consist of the Subclass 300 – Prospective Marriage visa, the offshore Subclass 309/100 – Partner visa, and onshore Subclass 820/801 – Partner visa seem to be coming under closer scrutiny over the last few years according to a recent Freedom of Information (FOI) application.

While it is not known who made the request, it seems that the person was familiar enough with the history of partner visas to request whether these visas were subject to a points system, or if there was any available “risk factor documentation”. What the applicant was most likely referring to was whether the Department of Home Affairs (Home Affairs), in assessing partner visas, used something similar to the Partner Program Risk Tiering Tool.

The Partner Program Risk Tiering Tool was an in-confidence tool which assigned points based on certain risk factors, such as allegation(s) received, substantive visa held, age difference, application of last resort, having a child from the relationship, length of relationship, and even whether they were lodged by a migration agent of concern. Points were assigned, and the application was categorised into risk categories: low, moderate, and high. Further scrutiny was then applied should it be deemed worthy according to the tool.

Home Affairs, in the decision record, categorically stated that they do not “process Partner visa applications using a points system.”

What Home Affairs did provide were the numbers of partner visas refused based on fraud and public interest criterion (PIC) 4020. PIC 4020 is commonly known as the integrity PIC. Because this PIC was introduced on 2 April 2011, most likely to combat some very high occurrences of fraudulent applications that received some media attention, Home Affairs may not have had a way to record refusals based on this PIC prior to its introduction, hence the additional category of refusals where fraud was recorded.

PIC 4020 requires visa applicants to not give, or cause to give, false or misleading information of a material particular to not just Home Affairs in relation to a visa application, but also to: the Administrative Appeals Tribunal, a Medical Officer of the Commonwealth (in relation to a visa medical), or a skill assessment authority. It applies to not only the visa application, but to a visa that an applicant held in the 12 months before the application was made. Should an applicant be refused for failing this PIC, they are subject to a 3-year bar (from being granted another visa) for any visa which has this PIC as a criterion. The bar begins from the date of the decision. This criterion can be waived should there be compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen justifying the grant of the visa. On 22 March 2014, there was an identity requirement added to this PIC. Those who do not satisfy their identity are subject to a 10-year bar, which cannot be waived.

If PIC 4020 must be met by all visa applicants (primary and secondary applicants where applicable) it can act as a “one fails all fail” criterion, meaning that other applicants can be affected by the PIC without failing PIC 4020 in their own right. On 23 November 2014, any applicant under the age of 18 at the time of applying for a visa which was refused for failing to meet PIC 4020 are not subject to any bar period.

While all PICs must be met, PIC 4020 carries hefty penalties should an application be refused on this ground. Obviously, the integrity of the visa system is considered paramount to Australia’s interests and ensuring applicants are assessed correctly against visa criteria.

Regarding partner visas, the FOI document released provided that the number of partner visas refused where fraud was recorded, by program year, was:

2014-15: 187

2015-16: 278

2016-17: 365

2017-18 (up to 30 April 2018): 273

Home Affairs have further provided refusals based on PIC 4020 and broken down whether these were refused based on identity, or based on providing a bogus document or false or misleading information:

2013-14: 1 (identity), 20 (bogus document or false or misleading information)

2014-15: 0 (identity), 107 (bogus document or false or misleading information)

2015-16: 13 (identity), 114 (bogus document or false or misleading information)

2016-17: 7 (identity), 86 (bogus document or false or misleading information)

2017-18 (up to 30 April 2018): 17 (identity), 200 (bogus document or false or misleading information)

With two months of the 2018 program year not accounted for, it is evident that there was a marked increase in refusals using PIC 4020, and a noticeable drop in refusals where fraud was recorded. It is as if Home Affairs prefers to use PIC 4020 where possible, probably due to the bar and hurdles required to have this waived if they are available. Fraudulent relationships naturally come under the purview of PIC 4020 as it would be providing false or misleading information of a material particular as any spouse or de facto relationship must be genuine and continuing, among other things. It is not known whether refusals for failing to meet PIC 4020 are incorporated in the numbers of refusals where fraud was recorded, although this seems unlikely.

Given that there has been a data-matching arrangement with the Australian Tax Office (ATO) for some time it might be that this has made an impact. Furthermore, the Australian Border Force, another arm of the Home Affairs portfolio, has been dedicating resources against visa scams, including fraudulent marriage scams, as recent media releases suggest, refusing 164 partner visas connect to that one scam. No doubt some of those numbers are represented in the figures listed above.

With all that being said, given there were some 56,333 partner visas lodged in the 2016-17 program year, the numbers refused because of fraud or PIC 4020 is miniscule, and perhaps partner visas are not subject to widespread fraud as some may believe.