Has your Visa been refused under Public Interest Criterion 4020 Notice? Here’s What You Need to Know
The occurrence of fraud or accidental provision of fraudulent documents across the visa applications process poses a high risk for not only the Department of Home Affairs but also for society at large. The concerns of the Department seem to stem from a real risk of visa applicants who fraudulently misuse their visa to facilitate illegal and heinous acts, including people smuggling, human trafficking, drug trafficking or terrorist operations.
While these are justified and compelling policy factors, which are in the public’s interest, the vast majority of genuine visa applicants who are subject to this rigorous requirement are generally people who are simply seeking a better opportunity or a different way of life.
Genuine visa applicants who, in most cases and by no fault of their own, tend to become embroiled in disputes with the very country that they are seeking entry into or protection.
Fortunately for genuine visa applicants, there is a substantial authority surrounding Public Interest Criterion 4020 which supports the Minister’s discretion to waive the requirements in prescribed circumstances.
 
Which Type of Visa does Public Interest Criterion 4020 apply to?
In most cases, the Public Interest Criterion 4020 will apply if your visa is a:

Skilled migration visa;
Business visa;
Temporary visa;
Student visa; or
Family visa

 
The Requirements of Public Interest Criterion 4020
Pursuant to the Migration Regulations 1994 (Cth) (‘The Regulation’) Schedule 4 Public Interest Criterion 4020, the Minister or their delegate may refuse a person’s visa application if:

Bogus documents or information that is false or misleading is fraudulently provided to the Minister in relation to the application for the visa or a visa that the applicant held in the period of 12 months before the application was made; and
The Minister is not satisfied with respect to the applicant’s identity.

The Public Interest Criterion 4020 extends to circumstances where an applicant or a family member of the applicant was previously refused a visa due to their failure to satisfy certain requirements.
 
What is considered a Bogus Document?
Section 5 (1) of the Migration Act 1958 (Cth) (‘The Act’) defines a bogus document as 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.

 
What is Information that is False or Misleading?
Information that is false or misleading in a material particular is defined under The Regulation as:

False or misleading at the time it is given; and
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.

 
Bogus Documents and Information that is False or Misleading Test – Current Visa Applications
The Minister or their delegate may only refuse a bogus document or information that is false or misleading on the basis of Public Interest Criterion 4020 If the document or information has the quality of ‘purposeful falsity’.  This test only generally only applies to current visa applicants.
If the current visa applicant provides the Minister or their delegate with a bogus document or information that is false or misleading, the applicant bears the onus of proving that the document or information did not have the quality of ‘purposeful falsity’.
In Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42:
The court held that to refuse on the basis of PIC 4020 it is necessary that the information or document have the quality of “purposeful falsity” whether or not the visa applicant can be shown to have personal knowledge of that fact. A visa application could not be refused due to PIC 4020 if a visa applicant could explain an innocent mistake in a document or information provided by them or on their behalf.
 
Bogus Documents and Information that is False or Misleading Test – Previous Visa Applications
If your visa application was previously refused, the Minister and their delegates bear a general obligation to document their assessment and their decision-making of Public Interest Criterion 4020, especially in relation to bogus documents or information that is false or misleading.
Depending on your circumstance, you may be eligible to appeal the visa refusal in the Administrative Appeals Tribunal.
If you have received a letter from the Minister or their delegate, we recommend that you seek legal advice to ascertain your position. We offer a free twenty (20) minute consultation to discuss your matter with our Director of Litigation and registered Migration Agent, Craig DoRozario (MARN 1910298).
 
Further Investigation for Bogus Documents or Information that is False or Misleading
In some circumstances, it may be appropriate for the Minister or their delegate to conduct an investigation or interrogation if the Minister or delegate reasonably suspects that the visa applicant has provided the Department with bogus documents or information that is false or misleading.
In other circumstances, the Minister or their delegate may also refer the visa applicants matter to other departmental offices, issuing authorities, biometric checks or other relevant government agencies.
 
Identity Requirements of Public Interest Criterion 4020
The visa applicant bears the onus of proofing that the identity information is true and correct. Identity fraud is generally considered significantly more serious than other types of visa fraud as a person’s identity creates the foundation for all checks, including national security and character checks, and further entitlements could possibly be derived from identity fraud (e.g. Medicare).
Importantly, the Minister or their delegate must be satisfied that the applicant or the family member has not been refused a visa within a specified time because of a failure to previously satisfy the identity requirement.
 
The ‘Natural Justice’ Letter from the Minister or their Delegate
The principal of natural justice in accordance with section 57 of The Act may apply and provide visa applicants with an opportunity to comment or provide additional documentation or information to the Minister or their delegate.
The importance of such an opportunity should not be overlooked by the applicant as the response from the applicant could be tendered as evidence in the event that the Minister or its delegate exercises their discretion to waive the requirements of Public Interest Criterion 4020.
 
The Minister Discretion to Waive the Requirements of Public Interest Criterion 4020
The Minister or their delegate may only waive the requirement of a bogus document or information that is false or misleading if satisfied that:

There are compelling circumstances that affect the interests of Australia; or
Compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

Notably, there is no provision in The Regulation to waive the Minister’s satisfaction with respect to the applicant’s identity.
 
What is Compelling or Compassionate Circumstances?
The Act or the Regulation does not provide a specific definition for ‘compelling’ or ‘compassionate’, which means the ordinary meaning of the words will apply.
It is beyond the scope of this article to provide an exhaustive definition of what will be ‘compelling’ or ‘compassionate’ in an applicant’s circumstance.
If you would like to ascertain whether your circumstance constitutes ‘compelling’ or ‘compassionate’ in light of Public Interest Criterion we strongly recommend seeking independent legal advice. As aforementioned, we offer a free twenty (20) minute consultation to discuss your matter with our Director of Litigation and registered Migration Agent, Craig DoRozario (MARN 1910298).
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Criminal Proceeds Confiscation and When the Proceeding will be Stayed
The Criminal Proceeds Confiscation Act 2002 (Qld) (‘the Act’) applies when the State of Queensland confiscates the proceeds of crime and property connected to persons convicted of particular serious drug offences.
Section 8 of the Act states that proceedings under the Act are civil proceedings and not criminal proceedings, which, among other things, means that:

Questions of fact must be decided on the ‘balance of probabilities’ and not the criminal and rigorous requirement of ‘beyond a reasonable doubt’; and
The rules of evidence only apply to the extent that they do in civil proceedings.

Nevertheless, the civil proceeding can and often runs concurrently with the criminal proceeding of the accused.
A common question from our clients is:
 
Can I stay (delay) my civil or criminal proceeding?
Our firm has represented and protected the interests of many clients with respect to both types of proceedings and has substantial first-hand experience and knowledge of the available avenues to our clients.
This article will explore the law surrounding staying a criminal proceeds confiscation matter and serves as a general overview to the reader, which by no means is definitive or exhaustive.
The content contained herein is not legal advice which should be relied upon and we recommend that you contact our office for a free twenty (20) minute consultation to discuss your matter with a member of our litigation team.
 
The Act and No Stay of Proceedings
Section 93 of the Act states that:
The fact that a criminal proceeding has been started against a person, whether or not under this Act, is not a ground on which the Supreme Court may stay a proceeding against or in relation to the person under this chapter that is not a criminal proceeding.
In other words, the Act does not preclude a stay of the civil proceeding entirely, but it clearly states that a person cannot seek a stay merely because criminal proceedings have commenced against the accused.
This was confirmed in State of Queensland v Bush [2003] QSC 375 where the court found:
[Section] 93 is not an absolute bar to a defence of forfeiture proceedings. However, at the minimum, it would require, in the particular circumstances of the case, a demonstrated reason why the interests of justice would not be served by the forfeiture proceedings being heard in advance of the criminal proceedings before a stay would be given.
 
The ‘McMahon Guidelines’ and the Court’s Discretion to Stay Proceedings
The ‘McMahon guidelines’ were developed in McMahon v Gould (1982) 7 ACLR 202 and continue to be frequently citied and referred to by the Courts in determining whether a court should exercise their general discretion to stay a proceeding.
Justice Wootten stated in McMahon the following guidelines::
            (A) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court;
(B) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;
(C) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff’s ordinary rights should be interfered with;
(D) Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;
(E) The court’s task is one of “the balancing of justice between the parties”, taking account of all relevant factors;
(F) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;
(G) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused’s “right of silence”, and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding;
(H) However, the so-called “right of silence” does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgement, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding;
(I) The court should consider whether there is a real and not merely notional   danger of injustice in the criminal proceedings;
(J) In this regard factors which may be relevant include:
(i) the possibility of publicity that might reach and influence jurors in the civil proceedings;
(ii) the proximity of the criminal hearing;
(iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;
(iv) the burden on the defendant of preparing for both sets of proceedings concurrently;
(v) whether the defendant has already disclosed his defence to the allegations;
(vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him;
(K) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant’s obligation to the plaintiff;
(L) In an appropriate case the proceedings may be allowed to proceed to a certain stage, e.g. setting down for trial, and then stayed.
 
Entitlement to Substantive Relief and ‘Good Cause’ Requirement
The McMahon guidelines serve as an important reference point for applicants seeking a stay of proceedings, however because of the nature and seriousness of the matters which are captured by the Act the courts maintain a certain view.
The court in State of Queensland v Henderson (S 1246 of 2003, 16 May 2003) found that:
It seems to me that before Henderson can be entitled to substantive relief, it is incumbent on him to demonstrate either or both that he has a matter which he wishes to raise in defence of the forfeiture proceedings which if raised would prejudice the criminal proceedings and/or that he has a matter which he would wish to raise in exclusion proceedings to a like effect.
In the High Court case of Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46, the court held that:
Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required. To warrant a stay of the forfeiture proceedings, it must be apparent that the person whose property is in question is at risk of prejudice in the conduct of his or her defence in the criminal trial.
It may be accepted that forfeiture proceedings should not be unduly delayed. No litigation should be delayed except for good cause, especially criminal proceedings.
 
Examples of Not Satisfying The Good Cause Requirement
In State of Queensland v Cannon [2003] QSC 459 the court held that:
No specific prejudice is pointed to by Mr Cannon, apart from the generally held fear that something might come out in his examination which will help the prosecution in a derivative sense in the prosecution of the criminal charges against him.
In Justice White’s reasons for his decision he commented:
As will be apparent I am not, therefore, persuaded that in the light of the clear provisions of the Act and no specifically identified prejudice or issues of justice would require the examinations to be stayed or adjourned until the criminal proceedings have concluded.
The defendants in Andrew Koh Nominees Pty Ltd As Trustee for Kl Unit Trust v Pacific Corporation Ltd [no 3] [2010] WASC 248 relied on eight grounds in their application to stay proceedings including:

The civil matter has already been on foot for 6 1/2 years, through no fault of the defendants. The plaintiff would not suffer any prejudice if the civil matter was partially delayed until the conclusion of the criminal matter
The burden on the second and third defendants in preparing for both a civil trial and criminal trial would be unmanageable and excessive, due to the likely cost and length of both the civil and criminal trials; particularly as the second defendant has numerous business interests overseas and spends most of his time out of Western Australia;
The second and third defendants both have various medical and health issues and are likely to suffer adversely, given the stress that they would undergo in having to prepare for and participate in criminal and civil trials, which may occur on or around the same time; and

Notably, the court simply rejected ground A but considered grounds B and C, and in the courts reasons, it was ultimately not satisfied based on the evidence presented to the court that a stay of proceeding should be granted.
 
Examples of Satisfying the Good Cause Requirement
In State of Queensland v Shaw [2003] QSC 436, it was submitted (by the applicant) that there was sufficient justification for granting a stay until the completion of the criminal proceedings on the grounds that:
(A)       The evidence relevant to defending the forfeiture proceedings would include evidence not presently in the possession of the State of Queensland;
(B)       If the stay was refused the State of Queensland would be alerted to further information concerning the financial position of the applicant;
(C)       By defending the forfeiture proceedings the applicant would be disclosing information which would otherwise be subject to his right to remain silent;
(D)       The State of Queensland would therefore be placed in the advantageous position of being alerted to the need for further evidence and the existence of further chains of inquiry in order to meet the defence raised by the applicant; and
(E)       Since the criminal proceedings are listed to be heard in about 3 ½ months’ time there would be no significant delay to the forfeiture proceedings
 
Justice MacKenzie declared, among other things, in his reasons for the decision:
The case is one where there is a well-defined and real advantage available to a person in criminal proceedings in respect of revealing evidence in advance. Depriving a defendant of such an advantage by requiring him to undergo prior proceedings where the State may, in effect, test-run the same case it proposes to lead in the prosecution proceeding and if necessary improve it if it can prior to that time is in my view sufficiently of the character of a demonstrated reason why the interests of justice would not be served by the forfeiture proceedings being heard in advance of the criminal proceedings. In my view the circumstances in which a stay is justified are established by the particular facts of the case.
 
Conclusion
In some cases a stay of proceeding may be the appropriate course of action in light of the individual’s circumstance, and a person may very well have good cause to seek a stay of proceeding. In any event, this will depend on the individual’s circumstance.
Please note that this article is not legal advice and is general in nature which should be relied upon.
If you would like legal advice that you can rely upon we recommend that you seek your own independent legal advice. As aforementioned, we offer a free twenty (20) minute consultation to discuss your matter.
 
 
 
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Before the 1 May 2019, a person could only be convicted of murder in Queensland if it could be shown that the person intended to kill or cause grievous bodily harm to a person.
Following the recent passing of the Criminal Code and Other Legislation Amendment Bill 2019 on 1 May 2019, the definition of murder has since been expanded to include death caused by an act done or omission made with reckless indifference to human life.
The new definition essentially means that if a person foresees death as a probable consequence of their actions, even though it was not their intention to kill, they are considered to be just as blameworthy as a person that intended to kill another person.
The expansion of the definition is assumed to have been in response to the community’s expectations surrounding child homicides, where offenders were being convicted of manslaughter as opposed to murder because it was too difficult to establish the act of intent.
Is this amendment a step too far? Bill Potts, President of the Queensland Law Society and Founding Director of Potts lawyers, discusses in the video below.
https://www.facebook.com/7NEWSSC/videos/865039413848554/
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Article by Adam Moschella, Criminal Lawyer at Potts Lawyers
 
Given the prevalence of applications for protection orders being filed and heard by the Magistrates Court parties can sometimes be put to unnecessary expense responding to said applications, especially where those applications are then appealed to the District Court.
With most being justified applications by those genuinely requiring protection, some applicants seek orders with the intention of using the order against the responding party to, for example gain an unfair advantage against a party in family law proceedings.
1. Can costs be awarded in domestic violence proceedings?
Traditionally, where applications for protection orders are heard and a Magistrate refuses to make an application, costs can be recovered by the respondent pursuant to section 157(2) of the Domestic Violence Family Protection Act 2012 (DVFP Act).
The Act provides that generally, each party to a proceeding for an application must bear their own costs. However, a court may award costs to a responding party where an application is malicious, deliberately false, frivolous or vexatious. It is important to note that just because an applicant’s application is dismissed, that does not entitle a responding party to recover costs. Rather a positive finding must be made by the Magistrate that the application is malicious, deliberately false, frivolous or vexatious.
2. Can a person recover costs on appeal?
Background
Where applications were appealed to the District Court the case of GKE v EUT [2014] QDC 248 meant that the District Court could not award costs for matters which were appealed as it was not clear as to whether s 157 of the DVFP Act applied to appeals.
Further, the powers of the District Court on appeal as outlined in section 169 of the DVFP Act included no power to award costs and Chapter 17A of the Uniform Civil Procedure Rules 1999 (UCPR) was not made applicable by section 142 of the DVFP Act.
Ultimately, under the DVFP Act it was determined by the District Court that there existed no inherent power of the court to award costs, but as always the court could rely on section 11 of the Civil Proceedings Act which provides a general statutory power in civil cases. However, given that there was no mention of appeal costs in the DVFP Act, the court did not exercise a power to award costs in the circumstances.
Recent developments
In 2018 there were two decisions of the District Court which clarified its power to award costs on appeal in domestic violence proceedings.
In HZA v ZHA [2018] QDC 125, the District Court confirmed that by virtue of section 142 of the DVFP Act and the costs provisions in the UCPR, costs are applicable to appeals under the DVFP Act. Pursuant to rule 681 of the UCPR costs in proceeding are always the discretion of the court, but follow the event unless the court otherwise orders.
There are a number of considerations which a court considers when exercising that discretion as to costs, such as the public interest nature of the proceedings (especially in respect of police applications) and the objective of the domestic violence legislative regime to name some.
Further, this case also provides authority for indemnity certificates under the Appeal Costs Fund Act 1973 to be awarded to protect respondents to the appeal where the appeal is successful as a result of a matter of law and no fault of the responding party to the appeal.
This position was extended in BAK v Gallagher & Anor (No 2) [2018] QDC 132 where a police officer who filed an application for a protection order which was successfully dismissed on appeal was ordered to pay the costs of the appellant (the respondent to the original DV application).
It is important that to remember that applications for protection orders under the DVFP Act are applications which are civil in nature and therefore costs consequences can apply. It is important that both the responding and aggrieved parties are advised accordingly so that costs may be recovered where available and so parties can protect themselves against potential costs orders being made against them.
 
This article is of a general nature only and must not be relied upon in any legal proceeding. If you are an aggrieved or respondent in a domestic violence proceeding, you should seek legal advice by contacting one of our lawyers.
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Two of our senior criminal lawyers, Erin Mitchell and Danielle Warren have been hard at work building and updating their Instagram page over the past few months. You can see Danielle discussing a drug driving charge here, and Erin discussing an assault charge here. The page is available with the handle @lady.crim.lawyers or by clicking here. View this post on Instagram ✖️CASE STUDY SUNDAY ✖️ . This week we chat about a client who was facing an assault charge. . Erin discusses a recent client who was charged with common assault and tried to proceed through justice mediation. Whilst the…

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QUEENSLAND AMBULANCE SERVICE PARAMEDICS AND PARAMEDICINE STUDENTS NOW REGULATED BY AHPRA Important information for all Queensland paramedics and paramedicine Students As the national regulation of paramedicine is approaching its final stages, Queensland paramedics should know that they must be registered with the Australian Health Practitioner Regulation Agency (AHPRA) by 1 December 2018 in order to practice paramedicine. Once registered, a paramedic’s registration will then be recognised in all states and territories in Australia.   All paramedics should check AHPRA’s website to see if the need to register with AHPRA, as some exceptions apply. Suitability Requirements for Paramedics All practicing paramedics and paramedicine…

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Article by Aadil Master Who does this apply to? In Queensland, all practising real estate agents, auctioneers and resident letting agents (eg most on-site managers for bodies corporate) must hold relevant licences and comply with the rules set out under the Property Occupations Act 2014 (Qld) (“the Act”). Real estate agents in Northern New South Wales and other parts of Australia are not subject to this Act, however similar legislation may exist in other states and territories. While we are able to assist real estate agents outside of Queensland, this article applies only to those who are currently practising, or…

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  Do you struggle to remember your court date? Read on! After a successful trial in Mackay in 2018, the Queensland Courts will now send SMS messages to adult defendants on bail to remind them of the date and time for their next court appearance. This SMS reminder service will be available to all adult offenders (18 years and over) who have been granted bail by the Magistrates Court or police watchhouse, and who have supplied a mobile phone number to the court house. This service will start across Queensland from 7 December 2018. The reminders will be sent to…

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Article by Danielle Warren, Criminal Lawyer   In 2014, the Queensland government passed laws about how you can behave at or near places where alcohol is being sold and supplied.  Police also have powers to respond quickly to anti-social behaviour around these areas.  The areas include licensed premises (such as bars and clubs), special areas known as ‘safe night precincts’ or events where alcohol is being sold or served.  The laws were introduced to minimise alcohol and drug-related violence, disturbances, and public disorder in certain areas. It would be wise to read this before you leave for a night out….

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Article by Erin Mitchell, Senior Criminal Lawyer Queensland Drug and Alcohol Court So many of our clients, and their families, ask if there is some type of penalty option where a person can be ordered to attend a rehab facility instead of jail and for a number of years, the answer has been “no”.  Today, 29 January 2019, marks one year since the Queensland Drug and Alcohol Court commenced in Brisbane. As defence lawyers, we were relieved to see such an important feature of our criminal justice system re-established. The Drug and Alcohol Court has a focus on assisting those…

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Article by Adam Moschella On 18 December 2018 the Queensland Court of Appeal handed down their decision in the matter of R v Renata; Ex parte Attorney-General for the State of Queensland [2018] QCA 356. Most would be aware of the facts of this case given the heavy media attention the matter has received. In the early hours of the morning on 3 January 2016, in Fortitude Valley’s Chinatown Mall, the respondent, Mr Renata struck the deceased, Cole Miller to the jaw once with a clenched fist while is back was turned (this type of act is more commonly described…

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Article by Erin Mitchell, Senior Criminal Lawyer On Saturday 13 January 2019, a man in his 40s was intercepted by Police in Brisbane riding one of those new green electric scooters that you see parked around the Brisbane CBD. It is alleged the man was riding the scooter without a helmet and proceeded through a red light without stopping. When Police intercepted him, they breathalysed him and he returned a reading of 0.174% blood alcohol concentration (BAC). The man was charged with driving under the influence – a high range drink driving offence, given the reading was over 0.15% BAC. Can…

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Our Founding Director and President of the Queensland Law Society, Bill Potts, was interviewed by ABC’s Rebecca Levingston in relation to the current backlog of cases in Queensland’s Magistrates’ Court. Click below to listen to the extract. The full radio show “Mornings with Rebecca Levingston” for Thursday 24 January 2019 is available here: https://www.abc.net.au/radio/brisbane/programs/focus/mornings/10724970    

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Article by Danielle Warren, Criminal Lawyer   Kids across Queensland are well and truly back to school for the year.  In this article, we have outlined the laws surrounding the safety and protocol parents of children in Queensland should be aware of, particularly: leaving your children unattended; how kids are to travel in cars; and disciplining your child (particularly smacking). Leaving children unattended We suspect that most parents are unaware that to leave your child unattended and without supervision can be a criminal offence. It is a controversial topic that has received a lot of attention in the media and amongst…

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