This is going to be the first of a series of in depth articles offering an explanation of PIC 4020 and look at how the courts are treating appeals to their jurisdiction. In our experience more and more people are attending our office with problems about 4020 issues.
Today we are going to take a quick look at what the DIBP means by a “Bogus Document” and what it will mean if they claim you have given one to them. So what is such a document?
A “Bogus Document” is;
.. a document that the Minister reasonably suspects is a document that:(a) purports to have been, but was not, issued in respect of the person; or(b) is counterfeit or has been altered by a person who does not have authority to do so; or(c) was obtained because of a false or misleading statement, whether or not made knowingly.
You will notice it mentions “reasonably suspects”. This is where is gets tricky. What right does the department have to make a judgment that they reasonably suspect a document is bogus? These days it seems any suspicion is enough for them to claim you have provided a bogus document.
The Trivedi Test
There is a Federal Court case back in 2014 which is till being used as the benchmark regarding this bogus document issue. We call it the Trivedi Test. In this case Ms. Trivedi had nominated her and her husband’s language ability as competent, and submitted IELTS results as proof. However, the Department obtained information from an online verification system that showed that she had achieved lower results, and did not meet the standard for competent English. As a result, her visa was refused using the PIC 4020 provision because the IELTS scores were found to be ‘false or misleading in a material particular’.
The important issue the case found that it does not matter whether the document is provided by the applicant knowingly or unwittingly. This means that visa applicants are responsible to ensure the truthfulness of the information and documents supplied to support the application.
The Court also found that the purpose of PIC 4020 is to deal with purposely untrue material. This means that an element of fraud or deception is necessary to attract PIC 4020. The Judge explained that fake documents are not created accidentally. This can be distinguished from innocent errors that can be easily explained, as this does not meet the purposely untrue requirement.
The matter that was discussed in this case referred to a bogus document. The Court described this document as ‘bogus’, ‘counterfeit’ and ‘not the real thing’. As the document was fake, this was enough to satisfy PIC 4020 and there was no duty on the decision maker to find that the applicant knew that the contents were false or misleading when it was supplied. The judge explained “ In my view, it is not necessary to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. ”
So, what does this mean? Essentially the Court has held applicants responsible for all of the information they submit. Furthermore, bogus documents meet the ‘purposely untrue’ definition as they are not created and supplied by accident. That is there is some intention to provide the document and that the intended purpose is to deceive.
The Trivedi test has been relied upon many times since the judgment was handed down in 2014, and has been cited as recently as October this year. It does not deal with every scenario but rather is focused upon a document the department reasonably suspected was fraudulently altered. The chances of you winning in the courts based upon a similar scenario then will be very bleak indeed.
However what about cases where the DIBP suspects your work reference letter is a “Bogus Document”? What about in cases you have given incorrect information on your application forms?Stay tuned for we will go onto these issues in future articles.