How to Waive Public Interest Criteria (PIC) 4020
How to Waive Public Interest Criteria (PIC) 4020 – Negative Effect on Australian Employers
If you are a visa immigrant in Australia and you don't meet the public interest criteria (PIC) 4020, you may be able to waive it. This article will explain how to waive PIC 4020 and what factors will be considered by the Department of Immigration and Border Protection (DIBP).
If you are looking to waive PIC 4020, it is important to understand what this criteria is and how it may impact your application. The DIBP looks at a number of factors when assessing whether or not someone meets the PIC 4020 requirements, including: character; health; national security; economic benefit; public interest.
In this blog post, we will explore some of the ways that you can waive PIC 4020 and continue on your path to permanent residency.
Public Interest Criteria 4020 (PIC 4020) requires that you had not submitted any false and misleading information in a material particular or a bogus document in relation to a current visa application or for a visa that you held in the past 12 months.
Often It Is Too Late To Retract The False And Misleading Information Or Bogus Document And Your Only Option Is To Waive The Requirement. To Obtain A Waiver You Will Need To Demonstrate That There Are:
Compassionate and compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand resident; or
Compelling circumstances affecting the interests of Australia.
Often one of the people that will be most affected by a visa holder’s departure from Australia will be their employer, who has sunk considerable time and resources in their training and had structured future plans for their business around retaining this employee.
However, arguing compelling circumstances affecting the interests of Australian employer is often a mixed bag with some succeeding and some not. So, what is the difference between a successful PIC 4020 argument in relation to an Australian employer and one that is not?
To answer the questions, we can look at two contrasting cases.
Majeed (Migration) [2021] AATA 4722 (24 November 2021)
Facts: The applicant in Majeed had a Student (subclass 500) visa refused on the basis of failing to meet PIC 4020. He was employed as an Electrician in Australia and his employer was a witness at the appeal of the refusal decision.
Decision: The Administrative Appeals Tribunal (AAT) affirmed the decision to refuse the visa on the basis that the circumstances affecting the interests of his Australian employer weren’t sufficiently compelling.
Why did the AAT affirm the refusal?
The following reasons were given:
No supporting documents were presented to substantiate the claim that his leaving Australia would rob the business of potential growth and limited evidence was provided to support the claim that he is crucial to the business.
The Tribunal questioned whether he would genuinely be crucial to the business as he had worked for them whilst holding a Student visa and was limited to working 20 hours a week this was before recent changes to the work conditions for Student visa holders).
Limited evidence was provided to demonstrate that electricians are highly sought after in Australia. Furthermore, although he is a skilled electrician, his skills were not unique in a way that would affect Australia’s interests.
Regan (Migration) [2020] AATA 5424 (18 December 2020)
Facts: The applicant in Regan had an Employer Nomination Scheme (subclass 186) visa refused for not meeting PIC 4020 and appealed this to the AAT. He was working as a Form Worker and a Team Leader supervising a large number of form workers.
Decision: The AAT remitted the application to the Department with the direction that PIC 4020 was waived.
Why did the AAT waive PIC 4020?
The following reasons were given:
His employer was a major formwork business involved in a large number of large commercial jobs. Furthermore, he acted in a supervisory capacity for a large number of staff.
The General Manager of the business advised that the retention of the applicant was important to ongoing growth and commercial success and employment references were provided. He had played a role in retaining apprentices and capturing significant commercial contracts.
It is difficult to attract competent and committed Form Workers in Australia – this was taken from a statement from the General Manager. His experience and unique skillset were taken into consideration.
The Tribunal also considered reasons that were not in relation to his employment:
The applicant and his partner was extensively involved in a voluntary community organisation and received an endorsement from the organisation’s founder.
The applicant’s sister, an Australian permanent resident, receives familial from the applicant and his departure would have an adverse impact on her and her Australian family unit.
Agape Henry Crux can help you
At Agape Henry Crux, our Accredited Specialist Immigration Lawyers and our team of immigration lawyers and migration agents are well trained to handle highly complex matters. Contact us or book one of our lawyers or agents to seek professional advice by calling 02-72002700 or email us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Burmese, Japanese, Mandarin, Cantonese, Indonesian, and Malay. If this isn’t your language, we can also help you arrange an interpreter.