If you have received a Natural Justice Letter asking to comment on a “bogus document” or “misleading information” provided by you in your application, do not think that the refusal is imminent.
Firstly, we have to identify if the “bogus document” or “misleading information” was, in fact, provided or is it just the Departmental assumption, that sometimes has no basis and makes no sense. For example, professional experience may be not recognised by the Department as there may be a lack of evidence to support it, or the term used to describe it has a different meaning in Australia and other countries. Or, as it is often the case, the business no longer exists and no one at the premisses recognised the Applicants photo. In these circumstances, we may need to make a submission outlining the reasons not to apply PIC 4020 to your case.
If there is no argument that the document is, in fact, bogus, we may need to get a “waiver” of PIC 4020.
The legal requirements for getting this waiver are as follows:
The “Minister” must be satisfied either that there are:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
In Mala v Minister the Court’s view was that the term “compassionate” means “a feeling of sorrow or pity for the sufferings or misfortunes of another, sympathy”.
In Babicci v Ministera Full Court considered the meaning of “compelling circumstances” and acknowledged that “there are shades of differences between the various dictionary definitions of “compelling. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision maker to make a positive finding that the prohibition contained in (the relevant regulation) should be waived”.
Please book a consultation to discuss your particular circumstances today, so we can advise on the best strategy for moving forward. You may need to act fast and make the decision to argue that you are right or compelling and compassionate reasons exist to waive PIC 4020. Alternatively, you may need to withdraw your application.
It is important to note that exclusion periods from 3 to 10 years apply after the decision is made to refuse a visa under the PIC 4020.