Mark Northam...re-PIC 4020

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Mark Northam...re-PIC 4020


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Old 09-05-2013, 11:10 PM
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Mark Northam...re-PIC 4020

Hi Mark....not sure how much of a test case we were in regards to this issue, seeing it was only implemented in July, and everyone telling us we were in deep chit, we took both embassy and phil departments on ourselves.....in the end they relented and our visa 100 was granted after 8 months of jumping thru hoops.....

Thanks mate for your input but if you are prepared to fight then it can be done.....

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Old 09-09-2013, 11:53 AM
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Adverse Information Received : PIC 4020

I have sent an explanation for an Adverse Information received and this is a PIC 4020. The Adverse info. is about the Current Employer Reference Letter. I had provided a Mail-endorsement by my immediate Manager as an evidence for reference for my current employer. My Agent/Consultant, instead of sending this Mail-endorsement, forged this Reference letter, to put it on company Letter-head and also screwed up my joining date. The Agent has done this without my knowledge. When the Employee verification happened, my current employer investigated with me and my agent about this bogus document and I was shocked to find this. My Agent although has accepted the mistake and my employer had been able to establish that the document was forged by the agent. I am still working for this employer, and now it is almost more than 4 yrs. In my explanation to DIAC, I have clearly stated that the said document was in-fact forged by my agent without my knowledge, and I have mail-trail evidences to prove the same. Also the investigation by my employer has already established the wrong actions by my agent. Hope DIAC would be satisfied with my explanation. Please let me know your thoughts.

Regards
R


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Old 09-09-2013, 01:23 PM
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Yeah...mine too was about fraud that was committed by a third party...even though we proved to embassy this fact it fell on deaf ears...guilty till proven innocent, so its up to you to prove it.....at least in oz there is some system of justice in place, trying to get accountability....try fronting a corrupt judge in Moslem territory n asking why?

Anyway the waiver worked but it took months of continuous ''requests for further docs'' good luck, im sure you will be fine...

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Old 09-09-2013, 02:21 PM
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Hi Rajesh -

That certainly seems like a reasonable explanation, especially since you are still employed by that employer! Problem is, DIAC does not care who did what, the applicant still is held responsible for anything submitted under his/her name. PIC4020 is nasty because there is no need to "prove" one's guilt in order to have this condition put into play. As Dunan said, trying to clear your name when PIC4020 is brought up by a case officer can take months and months of work. In that respect, I hope if you used a registered migration agent that you filed appropriate charges against him/her. If you used an unregistered agent, that leaves you very little recourse against the agent other than whatever your local laws allow.

I hope this works out for you - your explanation certainly seems logical and reasonable - the key will be seeing what DIAC has to say and their position on it. Please advise if I can assist further -

Best,

Mark Northam

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Old 09-09-2013, 08:21 PM
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Raj...I would let Mark handle it...believe me its what I would have done if I could....under the circumstances we had no choice but take up the fight even if our hands were tied behind our backs.....n we won...so make it easier on yourself..

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Old 09-10-2013, 07:09 AM
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Unhappy

Quote:
Originally Posted by MarkNortham View Post
Hi Rajesh -

That certainly seems like a reasonable explanation, especially since you are still employed by that employer! Problem is, DIAC does not care who did what, the applicant still is held responsible for anything submitted under his/her name. PIC4020 is nasty because there is no need to "prove" one's guilt in order to have this condition put into play. As Dunan said, trying to clear your name when PIC4020 is brought up by a case officer can take months and months of work. In that respect, I hope if you used a registered migration agent that you filed appropriate charges against him/her. If you used an unregistered agent, that leaves you very little recourse against the agent other than whatever your local laws allow.

I hope this works out for you - your explanation certainly seems logical and reasonable - the key will be seeing what DIAC has to say and their position on it. Please advise if I can assist further -

Best,

Mark Northam
Thanks Mark,

The agent is not a MARA registered agent. I have already terminated my contract with this agent and am contemplating legal proceedings against them .. and yes within the jurisdiction of this country. Let me know how can you help me.. should we wait for the response from DIAC for the clarification I have already sent and then take the next step. Please let me know your views based on your vast experience.
Rgds
Raj ....


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Old 09-10-2013, 07:30 AM
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Hi Raj -

It could go either way - you've responded to the natural justice letter which named PIC4020 and provided your explanation, so unless you wanted to provide any additional materials prior to the decision being made (if there is any additional info, etc to be provided), then it becomes a matter for the case officer to decide. Unfortunately as you're outside Australia you will have no MRT review rights, so the case officer's judgement essentially becomes final.

The issue now becomes whether you hope that your explanation will be accepted and you'll get a positive decision, or withdraw the application. But as is the case with PIC4020, simply withdrawing the application will not remove that from your record, but withdrawing could make it easier to lodge another application. A PIC4020 refusal results in a 3-year ban on applications for any Australian visa that has PIC4020 as one of its conditions (and many do). I have not seen the case officer's original letter with the PIC4020 accusations, nor your response, so it's difficult for me to address the matter in detail.

Hope this helps -

Best,

Mark Northam

PS - Here's the complete text of PIC4020 for reference:

4020

(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, 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:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.

(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse the application;
the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(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;
justify the granting of the visa.

(5) In this clause:

information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

Note Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.

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Immigration Lawyer and Registered Migration Agent

LLB, GradDipLaw, GradCertMigrLaw, BBA(Acctg) MARN 1175508
Northam Lawyers http://nlaw.com.au [email protected]
Co-Host, Coming 2 Oz live video show: https://www.facebook.com/groups/coming2oz/

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Old 09-10-2013, 08:16 AM
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Quote:
Originally Posted by MarkNortham View Post
Hi Raj -

It could go either way - you've responded to the natural justice letter which named PIC4020 and provided your explanation, so unless you wanted to provide any additional materials prior to the decision being made (if there is any additional info, etc to be provided), then it becomes a matter for the case officer to decide. Unfortunately as you're outside Australia you will have no MRT review rights, so the case officer's judgement essentially becomes final.

The issue now becomes whether you hope that your explanation will be accepted and you'll get a positive decision, or withdraw the application. But as is the case with PIC4020, simply withdrawing the application will not remove that from your record, but withdrawing could make it easier to lodge another application. A PIC4020 refusal results in a 3-year ban on applications for any Australian visa that has PIC4020 as one of its conditions (and many do). I have not seen the case officer's original letter with the PIC4020 accusations, nor your response, so it's difficult for me to address the matter in detail.

Hope this helps -

Best,

Mark Northam

PS - Here's the complete text of PIC4020 for reference:

4020

(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, 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:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.

(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse the application;
the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(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;
justify the granting of the visa.

(5) In this clause:

information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

Note Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.

Thanks for your response;

Just trying to understand, on the clarification I have sent .. so who will review this response (is it a call that Case Officer takes?) or is this something that goes to a wider group of people and they take decision on my clarification/response to Natural Justice. Also, if you can tell me how long does this take in terms of turnaround .. How long this wait should be ?

Regards
Raj


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Old 09-10-2013, 08:29 AM
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Hi Raj -

Sorry if I was confusing - "natural justice" is an Australian law principal that says, basically, that if negative information is being considered for use against you, that information needs to be provided to you and you need to be given an opportunity to respond to it, and your response must be considered by the decision maker. In your scenario, I expect that the case officer and perhaps his/her supervisor would be the ones making the decision.

In terms of turnaround, hard to say, typically within 30 days but can be longer.

Hope this helps -

Best,

Mark Northam

__________________
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Immigration Lawyer and Registered Migration Agent

LLB, GradDipLaw, GradCertMigrLaw, BBA(Acctg) MARN 1175508
Northam Lawyers http://nlaw.com.au [email protected]
Co-Host, Coming 2 Oz live video show: https://www.facebook.com/groups/coming2oz/

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Old 09-10-2013, 09:27 AM
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Unhappy Adverse Information Received : PIC 4020

Thanks a lot Mark,

I can only wait .. and as you said, since I am not in Australia, if the decision is negative, I cannot take this further, have I understood correct.

Regards
Raj ...


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