The Australian Department of Immigration and Citizenship (DIAC) will be introducing a new Fraud Public Interest Criterion (PIC) on 2nd April 2011. The Fraud PIC will be applied to certain Australian visa subclasses in Australia’s Skilled and Employer Sponsored Migration Program. 

DIAC is introducing the Fraud PIC in a bid to minimise the degree to which fraud is practiced in Australian visa applications. The Fraud Public Interest Criterion is designed to discourage Australian visa applicants from submitting false or misleading information on a visa application or review, and is also expected to give DIAC increased power to refuse applications in which the applicant has supplied any false or misleading information.

Any Australian visa applications in the following subclasses will be subject to assessment under the Fraud Public Interest Criterion if they are still awaiting a decision by DIAC or are under review as at 2nd April 2011;

• Subclass 175 - Skilled – Independent visa
• Subclass 176 - Skilled – Sponsored visa
• Subclass 475 - Skilled – Regional Sponsored visa
• Subclass 476 - Skilled – Skilled – Recognised Graduate
• Subclass 485 - Skilled – Graduate
• Subclass 487 - Skilled – Regional Sponsored visa
• Subclass 885 - Skilled – Independent visa
• Subclass 886 - Skilled – Sponsored visa
• Subclass 887 - Skilled – Regional
• Subclass 457 - Business (Long Stay)
• Subclass 119 - Regional Sponsored Migration Scheme
• Subclass 121 - Employer Nomination
• Subclass 856 - Employer Nomination Scheme
• Subclass 857 - Regional

Although the following visa subclasses have been closed to new applications from September 2007, pending applications remain and will be assessed under the Fraud Public Interest Criterion from 2nd April 2011;

• Subclass 880 - Skilled – Independent – Overseas Student
• Subclass 881 - Skilled – Australian-sponsored Overseas Student
• Subclass 882 - Skilled – Designated Area-sponsored Overseas Student
• Subclass 883 - Skilled – Designated Area-sponsored (Residence)
• Subclass 495 - Skilled – Independent Regional (Provisional)
• Subclass 496 - Skilled – Designated Area-sponsored (Provisional)

The information released by DIAC outlining the new Fraud PIC assessment of Australian visa applications indicates that the assessment will be comprised of three primary questions as follows;

Has the applicant provided false or misleading documents and/or information in the current Australian visa application? 

Has the applicant provided false or misleading documents and/or information on a previous Australian visa application which resulted in a grant of that visa in a 12 month timeframe before the submission of the current application?

Has the applicant previously had an Australian visa application refused due to failing to meet the fraud criterion in a three year period immediately before the submission of the current application?

These three primary criterion will allow DIAC to lawfully decide whether an application for an Australian visa, when assessed against the Fraud PIC, is subject to the claim that it is fraudulent, misleading or false.

In the event that an application for an Australian visa is assessed by DIAC as containing fraudulent information, DIAC is required by law to invite the applicant to make comment on the questionable information and/or documentation that was supplied with their application.

This invitation is intended to provide the applicant with the opportunity to explain the alleged discrepancy, and to present to DIAC any ‘compelling and/or compassionate’ reasons as to why the visa application should be granted.

An applicant may claim ‘compelling and/or compassionate circumstances’ in respect to having their application granted where it can be demonstrated that there are compelling circumstances which affect the interests of Australia, or there are compelling or compassionate circumstances that affect the interests of an Australian citizen, and Australian permanent resident, or an eligible New Zealand citizen.

If an applicant fails to demonstrate that their circumstances are compelling or compassionate in these regards, their application will be subject to refusal.

An applicant is provided with 28 days to reply to DIAC’s assessment of their application as fraudulent. Failure by the applicant to reply within this time period will likely result in their visa application being automatically refused.

If DIAC ultimately concludes that an application for an Australian visa as assessed against the new Fraud Public Interest Criterion contains false or misleading information, the application will be refused and the applicant may incur a three year ban on applying for any subsequent Australian visa which is subject to assessment against the Fraud Public Interest Criterion.

Please note that if an application is refused according to its assessment against the Fraud Public Interest Criterion, then all migrating family members who were included in the application that has been determined as fraudulent will also be refused a visa grant and may also incur the three year ban.

If an application for an Australian visa has been refused due to its assessment against the Fraud Public Interest Criterion, the applicant will usually have the right to apply for a review of this decision if the application was lodged within Australia.

Applications which have been lodged outside of Australia and are refused due to assessment against the Fraud Public Interest Criterion generally do not have the right to apply for a review of that decision, although in some cases the sponsor of the application may have the right to review.

In every instance where an application for an Australian visa is refused due to assessment against the Fraud Public Interest Criterion, the applicant will be provided with information explaining the reasons for the refusal, and explaining their review rights regarding that refusal.