Partner Visa PIC 4020: Risks and Response Options

A PIC 4020 partner visa concern arises when the Department of Home Affairs believes an applicant has given a bogus document or false or misleading information. Public Interest Criterion 4020 is the integrity criterion in Schedule 4 of the Migration Regulations 1994, and a partner visa cannot be granted unless it is satisfied or waived.

This guide is for couples whose application is still being decided and who have received, or fear they will receive, a PIC 4020 partner visa letter from the Department. It explains what the criterion requires, what "false or misleading in a material particular" means, why an applicant can fail the criterion even where an agent or another person filled in the form, how the identity limb works, and how the waiver for compassionate or compelling circumstances affecting an Australian can apply in a partner case.

A PIC 4020 partner visa issue is serious, but it is not automatically fatal. The law requires the Department to give the applicant a chance to comment, to consider whether there is an innocent explanation, and to consider the waiver before refusing. The response to that invitation is often the most important document in the whole application. For the wider framework of the partner visa pathways, see the firm's complete guide to partner visas in Australia.

What is PIC 4020 in a partner visa application?

PIC 4020 is a public interest criterion that requires a partner visa applicant to satisfy the decision maker that they have not given a bogus document or information that is false or misleading in a material particular, and that they are who they claim to be. It is often called the integrity criterion, and the Department's procedural instruction describes it that way.

Public interest criteria are set out in Part 1 of Schedule 4 of the Migration Regulations 1994. Each visa subclass lists in Schedule 2 the public interest criteria that must be satisfied. PIC 4020 is a criterion for most non-humanitarian visas, including the partner visas. It is a time of decision criterion. That means the decision maker asks whether it is satisfied when the decision is made, looking at everything that has been given to the Department up to that point.

In broad terms, PIC 4020 has four working parts:

• PIC 4020(1): no bogus document and no information that is false or misleading in a material particular, in relation to the current application or a visa held in the 12 months before the application was made.
• PIC 4020(2): no refusal of the applicant, or a member of the applicant's family unit, under PIC 4020(1) in the period starting three years before the application was made and ending at the time of decision.
• PIC 4020(2A) and (2B): the applicant must satisfy the decision maker as to their identity, and must not have been refused a visa for failing the identity requirement in the period starting ten years before the application was made.
• PIC 4020(4): a waiver of subclauses (1) and (2), but not of the identity requirements, where compelling or compassionate circumstances justify the grant of the visa.

Subclause (3) confirms that subclauses (1) and (2) apply whether or not the Department learned of the problem because of information the applicant gave. Subclause (5) defines what "false or misleading in a material particular" means. Each part is explained below because a PIC 4020 partner visa response must address the correct limb, not PIC 4020 in general.

A refusal for failing PIC 4020 is a refusal of the visa application. It is not a cancellation. The Department's procedural instruction confirms that PIC 4020 is a criterion for grant, not a condition after a visa has been granted. Where a partner visa is already held and the Department believes it was obtained with incorrect information, different provisions apply, and the firm's page on visa cancellations explains that separate area.

Which partner visas require PIC 4020?

Every Australian partner visa requires PIC 4020. The Department's policy for the Subclass 820 visa states that clause 820.226 requires the primary applicant to satisfy PIC 4020 and PIC 4021, and clause 820.326 applies the same requirement to secondary applicants. The Subclass 801 policy states that clause 801.325 requires PIC 4020. The Subclass 309, Subclass 100 and Subclass 300 visas also include it.

This means a PIC 4020 partner visa concern can arise at any stage:

• in the onshore temporary stage, the Subclass 820 partner visa, and later in the permanent Subclass 801 stage;
• in the offshore temporary stage, the Subclass 309 partner visa, and later in the permanent Subclass 100 stage;
• in an application for the Subclass 300 Prospective Marriage visa.

The two stage structure matters. Information given in the first stage is still information given in relation to the combined application. A concern that was not noticed when the Subclass 820 visa was granted can still be raised when the Subclass 801 visa is assessed. The article on the difference between Subclass 820 and Subclass 801 explains how the stages connect, and the Subclass 820 partner visa guide sets out the other criteria that still have to be met.

Partner visas also contain "one fails, all fail" rules. The Department's PIC 4020 instruction gives the example of paragraph 309.228(1)(a), which requires each member of the family unit who is an applicant for a Subclass 309 visa to satisfy PIC 4020. If a child included in the application fails PIC 4020, the primary applicant can fail that separate criterion as well. This is one reason a PIC 4020 partner visa issue concerning a child's documents must be taken as seriously as an issue concerning the main applicant.

What does PIC 4020(1) actually prohibit?

PIC 4020(1) prevents grant of a partner visa where there is evidence that the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular, in relation to the current application or a visa the applicant held in the 12 months before the application was made.

The Department's procedural instruction breaks PIC 4020(1) into four elements, all of which must exist for an applicant to fail:

• there is evidence before the decision maker;
• that the applicant has given, or caused to be given, to the Minister, an officer, the Administrative Review Tribunal during a review, a relevant assessing authority or a Medical Officer of the Commonwealth;
• a bogus document or information that is false or misleading in a material particular;
• in relation to the current application, or a visa the applicant held in the 12 months before the application was made.

The first element is often overlooked. The instruction states that PIC 4020(1) is satisfied unless there is evidence to the contrary, and that suspicion without evidence cannot be a basis for finding that the criterion is not met. A PIC 4020 partner visa letter should identify the evidence relied on. If it does not, that gap is itself a point for the response.

Bogus documents

A bogus document is defined in subsection 5(1) of the Migration Act 1958. In relation to a person, it means a document that the Minister reasonably suspects is a document that purports to have been, but was not, issued in respect of the person; is counterfeit or has been altered by a person who does not have authority to do so; or was obtained because of a false or misleading statement, whether or not made knowingly.

Three points follow from that definition.

• The test is reasonable suspicion. The Department does not need to prove that a document is false. It needs a reasonable suspicion that falls within one of the three paragraphs. The response must therefore deal with the grounds for the suspicion, not only assert that the document is genuine.
• The decision maker must identify the paragraph. The Department's instruction requires decision makers to pinpoint which paragraph of the definition applies and to quote the full definition in the natural justice letter. A letter that does not do this may be open to challenge.
• A bogus document cannot be undone. The instruction states that while incorrect information can be corrected, there is no provision to undo the giving of a bogus document. Providing a genuine marriage certificate later does not change the fact that a bogus one was given earlier. In that situation the PIC 4020 partner visa response usually turns on purposeful falsity and the waiver.

Unlike false or misleading information, a bogus document does not have to be material to a visa criterion. The Department's instruction says decision makers must still consider the relevance of the document and whether there was purposeful falsity in its provision.

False or misleading information in a material particular

PIC 4020(5) defines information that is false or misleading in a material particular as information that is false or misleading at the time it is given and is relevant to any of the criteria the Minister may consider in deciding the application, whether or not the decision is made because of that information.

False information is information that is contrary to fact. Misleading information gives a wrong impression, even where it contains some truth. The Department's instruction gives an example from the partner context itself: omitting a fact, such as an applicant not telling the Department that the sponsor died shortly after the application was lodged, can be false or misleading information. Omissions therefore count, not only wrong answers.

The words "at the time it was given" are important. An answer that was true when given does not become false because circumstances later change. The instruction's own example involves an applicant who answered a question correctly at lodgement and only later did something that would have changed the answer. That is not within PIC 4020. However, partner visa applicants have a separate legal obligation under section 104 of the Migration Act to notify changes in circumstances that make an answer incorrect, and the firm's article on Form 1022 and changes of circumstances explains when that is required. Failing to notify a change can create a new problem of its own.

The current application and a visa held in the previous 12 months

PIC 4020(1) only reaches information given in relation to the current application, or in relation to a visa the applicant held in the 12 months before the current application was made. The Department's instruction calls this a limited scope.

This is why so many PIC 4020 partner visa matters involve a visitor visa or student visa held shortly before the partner visa was lodged. If an applicant held a visitor visa in the 12 months before applying for a Subclass 820 visa, what was said in that visitor visa application is within reach. A typical example is a visitor visa application that described the applicant as single, married or separated in a way that later conflicts with the partner visa application.

The instruction also explains that information in older refused or withdrawn applications can be considered only if it reveals potential fraud in the current application or in the application for a visa held in the previous 12 months. One common example is how the applicant answers the question about previous visa refusals in the current application. If the current partner visa application says there were no earlier refusals and Department records show otherwise, the false answer is in the current application, even though the refusal itself is old.

Where the concern relates only to documents given in an earlier application outside this window, the issue is usually not PIC 4020 in the current application, but the earlier material may still affect credibility and other criteria. The firm's article on applying for a partner visa after a visa refusal deals with earlier refusals, and the article on moving from a tourist visa to a partner visa explains what to check in a visitor visa history before applying.

Does the applicant have to know the information was false?

No. An applicant can fail PIC 4020 even where they did not personally know that a document was bogus or that an answer was false, because knowing involvement is not required. However, the information or document must have the quality of "purposeful falsity", and a refusal cannot be made where the applicant explains a genuine innocent mistake that the decision maker accepts.

This is the point most people get wrong, in both directions. Some applicants believe they are safe because an agent, a relative or the sponsor filled in the form. Others believe that any wrong answer, however innocent, means automatic refusal. Neither is correct.

The Department's instruction relies on the Full Federal Court decision in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42. As the instruction summarises it, the Court held that it is not necessary for an applicant to be knowingly or directly involved in giving a bogus document or false or misleading information, but that the information or document must have the quality of purposeful falsity, whether or not the applicant personally knew of it. The instruction describes purposeful falsity in plain English as being intentionally untrue or incorrect.

Several consequences follow for a PIC 4020 partner visa application:

• Blaming the preparer is not enough. The instruction states that it is the applicant's responsibility to ensure that the documents and information are true, even where a third party acts for them, and that ignorance is no excuse. Section 98 of the Migration Act treats an application filled in on a person's behalf as filled in by that person. Documents uploaded through ImmiAccount are treated as given by the applicant.
• An innocent mistake is a real answer. The instruction says decision makers must turn their mind to whether there is an innocent explanation before refusing. If the applicant explains a genuine mistake and the decision maker believes it, it is open to find that there was no purposeful falsity and that PIC 4020 is satisfied.
• The onus is on the applicant to explain. The instruction states that the applicant must explain in the response why they did what they did and show that the action was a genuine mistake, where that is the case.

The instruction gives examples where purposeful falsity is unlikely. One is an applicant who answers "no" to a character question but declares the conviction elsewhere in the form and attaches a police certificate showing it. Another is an applicant who follows a custom in their country of origin without any intent to deceive. Isolated typographical errors, such as a transposed digit in an address or a year of birth, are also given as examples.

The practical lesson is that a PIC 4020 partner visa response is not a technical exercise. It must explain, with evidence, how the incorrect information came to be given, who prepared it, what the applicant understood at the time, and why the explanation is credible. The explanation must also be consistent with everything else on the file, including the relationship statement and Form 80 where one was provided.

What does "material particular" mean in a PIC 4020 partner visa case?

Information is material if it is relevant to any criterion the decision maker may consider in deciding the application, whether or not the decision is actually made because of it. The test is relevance to a criterion, not whether the false answer changed the result.

The Department's instruction refers to Khan v Minister for Immigration and Citizenship [2011] FCA 75, where the Court described information as material because it might influence the conclusion the decision maker might reach. The instruction stresses the word "might". The information does not have to have changed the decision. It is enough that it might have.

The instruction also says the relevant criterion cannot be PIC 4020 itself. The decision maker must identify the specific visa criterion to which the information relates, and must state it in the natural justice letter and the decision record. If the information is relevant to more than one criterion, all of them should be identified.

In a PIC 4020 partner visa matter, the criteria most often relied on are:

• The relationship criteria. Information about marital status, previous relationships, when the relationship began, when the couple started living together, and whether the couple is living separately and apart, is relevant to whether the applicant is the spouse or de facto partner of the sponsor.
• The character criterion, PIC 4001. Undisclosed convictions or criminal charges are relevant to character. The Department's instruction gives this as a standard example: it is not about whether the applicant would have passed the character test, but about the decision maker being unable to make an informed decision.
• The sponsorship criteria. Information about the sponsor's previous sponsorships or previous partners can be relevant to the sponsorship limitations and to whether the sponsorship should be approved.
• Member of the family unit criteria. Information about a child's parentage or dependency is relevant to whether a child is a member of the family unit.
• Schedule 3 and visa history criteria. Information about previous visas, refusals and periods without a visa can be relevant to the criteria that apply to onshore applicants. The firm's page on Schedule 3 waivers for partner visas explains those criteria.

Materiality is a genuine argument in some PIC 4020 partner visa cases. Where the Department has not identified a criterion to which the information is relevant, or where the link is strained, the response should say so clearly. Where the information is plainly relevant, such as an undisclosed earlier marriage in a spouse application, the response should not waste time disputing materiality and should focus on purposeful falsity and the waiver instead.

Common triggers for a PIC 4020 partner visa concern

The most common triggers for a PIC 4020 partner visa concern are inconsistencies between the partner visa application and earlier visa applications, undeclared relationships or children, undeclared criminal history, and documents that cannot be verified with the body that supposedly issued them.

The Department's instruction lists general triggers that may lead to further investigation. They include an immigration history suggesting earlier false information, claims inconsistent with earlier claims made by the applicant or the sponsor, allegations received about the applicant, repeated requests for extensions without an acceptable reason, and assistance from a person known to the Department for suspected fraudulent activity. In partner visa practice, the following situations come up again and again.

Marital status in an earlier visa application

A visitor or student visa application held in the 12 months before the partner visa often asks about relationship status. If the applicant said "never married" or "single" and the partner visa later shows a marriage or de facto relationship that existed at that time, the earlier answer may be treated as false. The reverse also happens: an applicant described as married in an earlier application who was in fact separated. These questions often turn on what the applicant genuinely understood their status to be, and on cultural or legal differences about when a relationship begins or ends.

Undisclosed previous relationships and children

Partner visa forms ask about previous marriages, de facto relationships and children. An undisclosed earlier marriage, an undisclosed child, or an inaccurate account of a previous divorce can be relevant to the relationship criteria and to the family unit. A PIC 4020 partner visa concern often begins when the Department's records from an earlier application show a different family composition.

How the couple met

The Department expects an honest account of how the relationship began. If the application describes a chance meeting but the couple was introduced through an introduction agency or by family, and the Department learns this from another source, the difference may be put as false or misleading information. A relationship that began through an introduction is lawful. The problem is the inconsistency, not the method of meeting.

Criminal history and character questions

Partner visa applicants must answer character questions and may need to provide police certificates. A "no" answer to a question about convictions or charges, followed by a police certificate or Department record showing an offence, is one of the most common PIC 4020 partner visa triggers. As noted above, the instruction treats a "no" answer as less likely to involve purposeful falsity where the conviction is declared elsewhere and the certificate was provided with the application.

Documents that cannot be verified

Marriage certificates, divorce orders, birth certificates, employment letters, bank statements and police certificates may be checked with the issuing authority. Where the issuing authority has no record of the document, or the format does not match, the Department may form a reasonable suspicion that it is bogus. These cases are often the hardest, because the response must deal with the Department's verification evidence directly. The firm's guide to preparing evidence of a genuine relationship explains why every document lodged should be one the couple can stand behind.

Interview answers

Information given at a Department interview is information given to an officer. Answers that conflict with the written application or with each other can be raised. A PIC 4020 partner visa issue can therefore start from an interview, even where the written application was accurate. The overview of why Subclass 820 partner visas are refused shows how interview inconsistencies also feed into the genuine relationship assessment.

Information given by the sponsor, a relative or a representative

Information given by a representative on the applicant's behalf is generally treated as given by the applicant. Information given by the sponsor in their own sponsorship application is different, and the Department must consider what the applicant actually did to cause it to be given.

The Department's instruction says that where an applicant willingly lets a third party, such as a migration agent, act for them and does not limit or control what that person does, documents and information provided by that person are, at the very least, caused to be given by the applicant. That is why a PIC 4020 partner visa response cannot simply say "my agent did it". The response must still deal with whether the information had the quality of purposeful falsity, and the applicant should explain fully what they told the preparer and what they reviewed before lodgement. Appointments of representatives are made through Form 956, explained in the firm's guide to Form 956 and 956A.

Sponsorship information is treated more carefully. The instruction states that documents a sponsor provides for the sponsorship application are usually provided by the sponsor on their own behalf. The Department generally regards them as given "in relation to" the visa application, but whether the applicant "gave or caused them to be given" depends on the facts. The instruction gives the example of a bogus police check provided by a sponsor. A sponsor's police check is not something an applicant could reasonably be expected to provide, so more than simple permission is needed before the applicant can be said to have caused it to be given. The instruction suggests that in that kind of case another basis for refusal, such as the sponsorship requirements, may be more appropriate than PIC 4020.

This distinction matters in practice. Where a PIC 4020 partner visa letter is based on information that relates only to the sponsor, the response should test whether the applicant gave or caused it to be given at all. The firm's article on when a sponsor cannot sponsor a partner visa explains the separate sponsorship rules that may be engaged instead.

Supporting statements raise similar questions. Form 888 statements are given by the witnesses themselves, but they are lodged by the couple as part of the application. Each statement must be accurate and in the witness's own words. The firm's guides to what a Form 888 should actually say and Form 888 example answers and common mistakes explain how to avoid statements that overstate what the witness knows.

The identity limb: PIC 4020(2A) and (2B)

PIC 4020(2A) requires the applicant to satisfy the decision maker as to their identity, and there is no waiver for it. If the decision maker is not satisfied that the applicant is who they claim to be, the partner visa must be refused, however genuine the relationship is.

The identity limb operates separately from PIC 4020(1). The Department's instruction says an applicant who provides a bogus document may still satisfy the decision maker as to identity, and an applicant whose documents appear genuine may still fail to do so. It also says there is no benefit of the doubt in relation to identity, and that the onus is on the applicant.

The instruction describes three pillars of identity:

• Biometrics: facial images, fingerprints and, where relevant to a claimed family relationship, DNA.
• Documents: passports, national identity cards, birth certificates and other documents issued by government agencies, which receive greater weight.
• Life story: the person's history of family, education, employment, residence, travel and social footprint, shown through knowledge, documents, interview answers and records of community life.

Identity concerns in a PIC 4020 partner visa matter commonly arise where a biometric match links the applicant to another record with a different name or date of birth, where documents conflict on basic details, or where the applicant's life story is inconsistent. The instruction notes that an applicant who used a false identity and later proves their true identity may then satisfy PIC 4020(2A), but may fail PIC 4020(1) because of the earlier false identity documents. Both limbs then need to be addressed.

Where an applicant genuinely cannot obtain standard identity documents, the instruction directs decision makers to a risk based approach that gives more weight to the other pillars. Evidence such as parents' passports, evidence of the parent and child relationship, and a consistent life story may be enough. The response should therefore assemble every available form of identity evidence, not just the one document in question.

PIC 4020(2B) is the consequence of an earlier identity refusal. It prevents grant where the applicant, or a member of the applicant's family unit, was refused a visa for failing PIC 4020(2A) in the period starting ten years before the current application was made and ending at the time of decision. The instruction states that there are no waiver provisions for this period.

How the Department raises a PIC 4020 partner visa concern

The Department raises a PIC 4020 partner visa concern by sending a natural justice letter under section 57 of the Migration Act, inviting the applicant to comment on the adverse information and on any grounds for waiver. A section 56 request for information is not the correct vehicle for a PIC 4020 refusal.

Section 57 requires the decision maker to give the applicant particulars of information that would be the reason, or part of the reason, for refusal, where that information is specifically about the applicant or another person and was not given by the applicant for the purpose of the application. The decision maker must ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant, invite comment, and specify how and when comments may be given.

The Department's instruction goes further. It states that a section 56 request cannot be used to put a PIC 4020 concern, and that a refusal made after raising the issue only in a section 56 letter would likely be affected by jurisdictional error. A section 56 request may be used where the decision maker suspects fraud but does not yet have information to put to the applicant. If a PIC 4020 refusal is then considered, a section 57 letter must follow. The firm's articles on responding to a section 56 request and on the section 57 natural justice letter for a partner visa explain both processes in general terms.

According to the instruction, a PIC 4020 natural justice letter should:

• identify each piece of information considered false or misleading, and how it was given, such as an answer to a form question, a document or an interview answer;
• explain how it is false or misleading, and state the specific visa criterion to which it is material;
• for a suspected bogus document, identify the document, quote the full definition and state which paragraph applies and why;
• for identity concerns, explain why the decision maker is not satisfied;
• state whether the concern relates to the current application or to a visa held in the 12 months before it;
• invite comment on each and every issue, and invite the applicant to provide reasons why PIC 4020 should be waived;
• avoid wording that suggests the decision has already been made.

Comparing the letter with these requirements is the first step in any PIC 4020 partner visa response. A letter that is vague, that does not identify the criterion, or that does not invite comment on waiver may contain a legal error. That does not make the problem go away, but it can affect how the response is framed and, later, what happens on review.

How to respond to a PIC 4020 partner visa natural justice letter

The response to a PIC 4020 partner visa letter should answer every concern in the letter, explain honestly how the information came to be given, correct the record with evidence, address materiality where it is genuinely in issue, and put forward every compassionate or compelling circumstance that supports a waiver.

The time to respond is short and strictly applied. The letter states the period and the manner of response. Before anything is written, the couple should collect the letter, the full partner visa application as lodged, every earlier visa application within the relevant window, and the documents that the Department has questioned.

Read the letter precisely

Identify exactly what the Department says is false, misleading or bogus, which limb of PIC 4020 it relies on, and which criterion it says the information is material to. Many weak responses answer the concern the applicant fears rather than the one the Department actually raised. A PIC 4020 partner visa letter may also raise the genuine relationship or other criteria at the same time, and each issue needs its own answer.

Explain what happened, honestly and in full

The explanation should come from the applicant and, where relevant, the sponsor. It should cover who prepared the form or obtained the document, what instructions were given, what the applicant understood the question to mean, what they believed the answer was at the time, and why. Where the information was wrong, the response should say so plainly. Attempting to defend an answer that is obviously incorrect damages credibility and usually undermines the more important arguments about purposeful falsity and waiver.

Where the explanation is an innocent mistake, it must be credible and supported. Evidence that the true position was disclosed elsewhere in the application, that the applicant relied on advice, that the question was ambiguous in the applicant's language, or that a custom in the applicant's country explains the document, can all be relevant. The Department's instruction specifically recognises that following a country of origin custom without intent to deceive is unlikely to involve purposeful falsity.

Correct the record

Where an answer in the application was incorrect, the correct information should be given. The Migration Act requires applicants to tell the Department about incorrect answers, and Form 1023, Notification of incorrect answer(s), is the Department's form for that purpose. Where circumstances have changed since lodgement, Form 1022 is the form for notifying the change. Correcting the record does not undo a false answer already given, but it shows candour and is relevant to purposeful falsity and the waiver.

Address materiality where it is genuinely in issue

If the Department has not identified a criterion, or if the information has no real connection to any criterion, the response should say so with reasons. The Khan approach means the threshold is low, so this argument is strongest where the information is truly peripheral. Where the information is plainly relevant, the response should concede the point and focus elsewhere.

Put the waiver case

The letter must invite the applicant to say why PIC 4020 should be waived. The waiver is the most important protection in a PIC 4020 partner visa case, because the sponsor is usually an Australian citizen or permanent resident. The waiver case should be prepared as carefully as the explanation. It is discussed in detail below.

Provide evidence, not only submissions

Every factual statement in the response should be supported where possible: identity documents, court records, certified translations, letters from issuing authorities, records of who prepared the earlier application, and evidence of the Australian family's circumstances. The firm's partner visa document checklist and its evidence checklist for an 820 partner visa list the general categories of partner visa evidence.

Timing and late material

The Department's instruction states that a response received before a decision is made must be considered, even if it arrives after the response period has ended. That is not a reason to be late. A decision can be made as soon as the period ends, and a refusal can then follow without the response. Where more time is genuinely needed, for example to obtain records from overseas, a request for more time should be made before the period ends, with reasons. The instruction notes that repeated extension requests without an acceptable reason can themselves be treated as a trigger for further scrutiny.

For couples who lodged their own application and have now received a PIC 4020 partner visa letter, the article on hiring an immigration lawyer after lodging your own visa application and the guide to urgent immigration lawyer advice explain what to prepare before seeking help.

Should you withdraw a partner visa application after a PIC 4020 letter?

No, not without legal advice. Withdrawal is rarely a safe way out of a PIC 4020 partner visa concern. It avoids a PIC 4020 refusal and the non-grant period that would follow, but the Department's instruction states that a withdrawal in response to a PIC 4020 letter is recorded in Department systems as suspected fraud, so later applications are scrutinised.

The instruction directs officers, where an applicant withdraws after a PIC 4020 natural justice letter, to finalise the application as withdrawn, to record a fraud data entry, and to raise an alert in the Department's movement alert system. It explains that this ensures future applications are not automatically granted and that decision makers apply an appropriate level of scrutiny. Where no response is received, the instruction directs the decision maker to decide on the information available and also record the suspected fraud.

Withdrawal also has other consequences in a partner case. An onshore applicant may lose the bridging visa that depended on the application, and may face Schedule 3 criteria in any later onshore application. The firm's guides to Bridging Visa A and to bridging visas in Australia explain how bridging visas depend on a pending application.

Withdrawal can still be the right decision in a narrow set of cases, but it should be made only after legal advice on the strength of the response, the waiver, the visa status consequences, and the effect on any future application. Withdrawing in a panic to "avoid a record" usually achieves the opposite.

Can PIC 4020 be waived for a partner visa?

Yes. PIC 4020(4) allows the decision maker to waive PIC 4020(1) and PIC 4020(2) where compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, justify the grant of the visa. The identity requirements in PIC 4020(2A) and (2B) cannot be waived.

The waiver is why a PIC 4020 partner visa concern is different from the same concern in many other visa types. In a partner case, the sponsor is usually an Australian citizen, permanent resident or eligible New Zealand citizen. Refusing the visa directly affects that person. The Department's instruction recognises this expressly: in the partner visa context, the nature and extent of the bonds between partners in a genuine relationship, and the consequences of the partners separating, are likely to differ from one relationship to another.

Compelling circumstances affecting the interests of Australia

The first limb concerns Australia's interests. The Department's instruction gives examples such as harm to Australia's trade or business opportunities, damage to Australia's relationship with a foreign government, or Australia missing out on a significant benefit the person could contribute, such as a highly sought after skill. The instruction states that merely working and paying taxes, paying education fees or spending money in Australia is not enough. This limb is less often the centre of a PIC 4020 partner visa waiver case, but it should not be ignored where the applicant's work or skills are genuinely significant.

Compassionate or compelling circumstances affecting an Australian

The second limb is usually the main one in a partner case. The circumstances must affect an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The instruction states that circumstances affecting only the applicant are not relevant unless they also affect such a person, and that the interests of the applicant themselves are not relevant to the waiver.

The instruction lists factors that may support a waiver, including:

• an Australian citizen, permanent resident or eligible New Zealand citizen child under 18 living in Australia who would be adversely affected, considering existing family networks in Australia and whether the applicant is part of the child's immediate family;
• significant health or welfare issues affecting the Australian partner or another Australian family member, including the absence of other carers and whether the illness is debilitating, permanent and requires ongoing care;
• continuing separation of immediate family members because the Australian cannot live in the applicant's country or a third country, including where that country is a war zone or where the sponsor is a person to whom Australia owes protection obligations.

The list is not exhaustive. Each PIC 4020 partner visa waiver case must be presented on its own facts.

How the waiver decision is made

The instruction states that the decision maker must actively consider the waiver whether or not the applicant asks for it, and must consider all the information provided with or in relation to the application. It also states that the circumstances must already exist, not be something that may happen in future, and must be sufficiently persuasive. At that point it is acceptable for the decision maker to weigh the nature of the false information or document, the applicant's immigration history and the importance of the integrity of the visa system against the circumstances relied on.

That balancing exercise shapes the response. A strong waiver case does two things: it shows real, current and specific effects on an Australian, supported by evidence, and it presents the incorrect information in its true light, including any candour since. A child's school and medical records, a partner's medical evidence and carer arrangements, evidence of why the Australian partner cannot relocate, and statements from Australian family members are typical waiver evidence. Where a child of the relationship has been born, the child's citizenship and circumstances are directly relevant.

What a waiver does and does not do

If the waiver is exercised, the applicant satisfies PIC 4020 for that application only. The instruction states that a waiver does not mean the false information or bogus document can be used to meet the criterion it relates to. The applicant must still prove every other criterion with genuine evidence. In a PIC 4020 partner visa case, that means the genuine relationship and all other requirements must still be established on accurate material. The general guide to partner visa evidence explains how the relationship is assessed.

What happens after a PIC 4020 partner visa refusal?

A PIC 4020 partner visa refusal ends that application, and, unless the applicant was under 18 when the refused application was made, it starts a non-grant period: three years for a refusal under PIC 4020(1), and ten years for a refusal under the identity requirement in PIC 4020(2A).

These periods are sometimes described as exclusion periods, but the Department's instruction calls them non-grant periods. They work through PIC 4020(2) and (2B) in later applications. During the three year period, a later visa that includes PIC 4020 cannot be granted unless the waiver in PIC 4020(4) applies. The ten year identity period cannot be waived. The periods also reach members of the applicant's family unit, so a refusal of one family member can affect the others. Applicants under 18 when the refused application was made are not subject to the non-grant periods under PIC 4020(2AA) and (2BA), although they can still be refused under PIC 4020.

A PIC 4020 partner visa refusal can have several other effects:

• Combined applications. Where a family member included in a partner application fails PIC 4020, the "one fails, all fail" criterion for the subclass can lead to refusal of the whole application.
• Bridging visas. For an onshore Subclass 820 applicant, a refusal starts the period in which the applicant must either seek review or make arrangements, and the bridging visa position depends on what happens next. The firm's guide to work rights while waiting for a Subclass 820 visa explains the bridging visa that usually applies during processing.
• Future applications. Even after a non-grant period ends, the refusal remains on the Department's records and must be disclosed truthfully in later applications. Failing to disclose it can itself create a new PIC 4020 problem.

The instruction also states that where a PIC 4020 refusal is taken to the Administrative Review Tribunal, the non-grant period remains in effect until the Tribunal has decided the review. If the Tribunal sets the decision aside, the position changes from that point. The firm's partner visa refusals page and its guide to partner visa appeal options explain review in partner matters generally.

Tribunal decisions on PIC 4020 partner visa issues

The Administrative Review Tribunal, and the Administrative Appeals Tribunal before it, has reconsidered many partner visa refusals involving PIC 4020, and has remitted a number of them to the Department. The following are matters that the Tribunal remitted. The issues listed are taken from the issue summaries recorded for each decision.

• In TRUONG (Migration) [2024] AATA 680, a Subclass 820 matter that the Tribunal remitted, the issues included false or misleading information in a material particular, a previous visitor visa application, marital status, and a couple who were separated but still living together.
• In Pham (Migration) [2021] AATA 4350, a Subclass 820 matter that the Tribunal remitted, the issues included false or misleading information in a previous visitor visa application, where the applicant answered "married" but was separated at the time and later divorced.
• In Mohammadi (Migration) [2021] AATA 5554, a Subclass 309 matter that the Tribunal remitted, the issues included false or misleading information in a material particular, the biological parentage of a secondary applicant, DNA test results, and whether the information was material.
• In HASSAN (Migration) [2019] AATA 6523, a Subclass 300 matter that the Tribunal remitted, the issues included that the applicant had given false or misleading information, that the requirements of PIC 4020 were waived, and that a dependent child had been born of the relationship.
• In Chea (Migration) [2021] AATA 2824, a Subclass 309 matter that the Tribunal remitted, the issues included whether the applicant met PIC 4020(2A), and the identity documents and evidence provided.
• In Yeung (Migration) [2020] AATA 4137, a Subclass 820 matter that the Tribunal remitted, the issues included incorrect information in the visa application and in Department interviews, and a meeting through an introduction agency that was not disclosed.

These decisions do not predict the result of any other case, and each turns on its own evidence. They do show the themes that recur in PIC 4020 partner visa matters: marital status in earlier visitor visa applications, separation and divorce timing, a child's parentage, identity evidence, how the couple met, and the waiver where an Australian family is affected. They also confirm that a PIC 4020 partner visa refusal can be considered afresh on review.

Can a PIC 4020 partner visa refusal be reviewed?

Yes. A PIC 4020 partner visa refusal can usually be reviewed by the Administrative Review Tribunal, which considers the matter afresh, can receive new evidence and can make its own findings on purposeful falsity, materiality, identity and the waiver. The time limit to apply is short and strictly applied, and the refusal letter states who may apply and by when.

For an onshore Subclass 820 refusal, the applicant generally applies for review and must be in Australia when doing so. For an offshore Subclass 309 or Subclass 300 refusal, the Australian sponsor generally applies. The Tribunal stands in the shoes of the decision maker. Information given to the Tribunal is also within PIC 4020, because the criterion covers documents and information given to the Tribunal during a review. Everything filed on review must therefore be accurate.

Review is often where the full explanation and the full waiver case are presented for the first time, particularly where the applicant did not respond, or responded briefly, to the Department's letter. The firm's articles on what to expect in an ART review and on when you need a visa appeal lawyer explain the process, and its page on visa refusals and Tribunal reviews describes the firm's review work. Where the Tribunal affirms a refusal and there is an arguable error of law, judicial review may be considered.

Family violence and PIC 4020

Where a partner visa application includes claims of family violence, the Department's instruction directs decision makers to take a family violence informed approach to PIC 4020, and to consider whether the circumstances reasonably explain the information that was given.

The instruction recognises that an applicant affected by family violence may have given incorrect information because of pressure, control or fear, and that the context must be considered when assessing purposeful falsity. It encourages decision makers to seek specialist support within the Department before contacting the applicant. It also notes that family violence alone is unlikely to engage the first waiver limb about Australia's interests, so the waiver case in those matters will usually depend on the effect on Australian family members, such as children.

Where the relationship has ended because of family violence, the special provisions for family violence may allow the partner visa to continue, and the firm's page on family violence partner visa matters explains them. The firm's article on what happens to a Subclass 820 application if the relationship breaks down covers the wider position. Anyone in immediate danger should call 000.

Mistakes that make a PIC 4020 partner visa concern worse

The mistakes that most often make a PIC 4020 partner visa concern worse are missing the response deadline, giving a new explanation that contradicts the old one, providing further unverified documents, blaming others without explanation, and ignoring the waiver.

• Not responding, or responding late. A decision can be made once the period ends.
• Changing the story. A response that gives a third version of events, different from both the application and the Department's records, is rarely believed.
• Fixing one false document with another. Providing a replacement document that also cannot be verified compounds the problem and can create a further PIC 4020 issue.
• Blaming the preparer and stopping there. The applicant remains responsible for what was lodged. The explanation must go further.
• Arguing materiality where it is obvious. This can make the response look evasive.
• Leaving out the waiver. Every compassionate and compelling circumstance affecting an Australian should be identified and evidenced.
• Not checking every earlier application. Answers in a visitor or student visa held in the 12 months before the partner visa must be compared line by line with the partner application.
• Lodging a new application without addressing the history. A fresh application that repeats the same incorrect answer, or omits the earlier refusal, creates a new problem.

The firm's general article on why partner visas get refused shows how credibility issues interact with the genuine relationship assessment. Couples deciding whether to seek help can read the comparison of a partner visa lawyer and doing it yourself, the guide to getting a second opinion from an immigration lawyer, and the article on when you need an immigration lawyer for a partner visa.

PIC 4020 partner visa advice across Australia

My Migration Lawyers advises on PIC 4020 partner visa matters wherever the couple lives, with consultations held by video so that the applicant and the sponsor can both attend, including from overseas.

The firm acts as partner visa lawyers in Sydney and Parramatta, as partner visa lawyers in Melbourne, Brisbane, Perth and Adelaide, and for clients on the Gold Coast, in Canberra and in Hobart.

For wider migration matters, the firm also acts as immigration lawyers in Sydney, Melbourne, Brisbane, Perth, Adelaide and Canberra. Sponsors researching local options may also find the guides to partner visa lawyers in Sydney and partner visa lawyers in Melbourne useful, together with the guide on how to choose a partner visa lawyer in Australia and the article on booking an immigration lawyer consultation.

How My Migration Lawyers helps with a PIC 4020 partner visa concern

My Migration Lawyers deals with complex partner visa matters, including many where the Department has raised PIC 4020 over earlier visitor visa answers, undisclosed relationships, children's documents, identity or interview inconsistencies. The firm acts in many matters of this exact type and is capable of handling a PIC 4020 partner visa concern from the first natural justice letter through to Tribunal review.

The firm's work on a PIC 4020 partner visa matter is specific to the integrity criterion.

• Analysing the letter. The firm identifies which limb of PIC 4020 is relied on, what information or document is said to be false or bogus, which criterion it is said to be material to, and whether the letter meets the requirements of section 57.
• Reconstructing the history. The firm compares the partner visa application line by line with every earlier application within the relevant period, Form 80, interview records and the documents in question, so the response deals with every inconsistency the Department may find, not only the one raised.
• Presenting the client's account. The explanation is the client's own evidence. The firm takes the client's account of how the information came to be given, presents it in the form the law requires, and the client reviews and corrects every detail before it is signed.
• Correcting the record. Where an answer was incorrect, the firm prepares the correct information and the notifications the law requires.
• Legal submissions. The firm prepares submissions on purposeful falsity, materiality, the scope of the 12 month window, whether information was given or caused to be given by the applicant, and identity.
• The waiver case. The firm identifies every compassionate or compelling circumstance affecting the Australian partner, children and other Australian family members, and assembles the evidence that shows those circumstances are real and current.
• Review. Where a PIC 4020 partner visa application has already been refused and review is available, the firm prepares the Tribunal application, the evidence and the submissions.

The firm's partner visa practice is described on its partner visa lawyers page, and its Principal Lawyer, Weiwei Zhang, oversees that practice. More about the firm is on the about page.

If the Department has raised PIC 4020 in your partner visa application, or you are concerned about an answer already given, book a consultation online. You can also call 1300 040 300.