Migration Regulation 482.317: Understanding Risk Factors Under PIC 4013 and 4014
When applying for a Skills in Demand (SID) visa (subclass 482), applicants must satisfy a number of Public Interest Criteria (PIC) under Migration Regulation 482.317. Among these, PIC 4013 and 4014 are particularly significant for individuals with past visa issues or complex immigration histories.
In this article, we explore the key aspects, implications, and risk factors associated with PIC 4013 and PIC 4014, including circumstances that may lead to refusal and when exceptions may apply.
What Are PIC 4013 and 4014?
PIC 4013: Visa Cancellation Risk Factor
PIC 4013 applies to individuals whose previous visas were cancelled under specific sections of the Migration Act 1958, including:
Section 109 (incorrect information or bogus documents)
Section 116(1)(d) (non-compliance with visa conditions)
Section 116(1)(e) (risk to health, safety or good order)
Sections 128, 133A, or 133C (Ministerial cancellation powers)
Section 137J (automatic cancellation of student visas)
If affected, a visa application cannot be approved within three years of the cancellation unless:
More than three years have passed, or
There are compelling circumstances affecting the interests of Australia, or
Compassionate or compelling circumstances affect an Australian citizen, permanent resident, or eligible New Zealand citizen.
PIC 4014: Unlawful Departure Risk Factor
PIC 4014 targets applicants who departed Australia under specific immigration circumstances:
As an unlawful non-citizen, or
Holding a Bridging C (subclass WC), Bridging D (subclass WD) or Bridging E (subclass WE) visa at the time of departure.
These applicants face a three-year exclusion period unless:
They departed more than three years ago, or
There are compelling or compassionate circumstances similar to those outlined in PIC 4013.
However, exceptions apply under PIC 4014(5) if:
The person departed within 28 days of their substantive visa ceasing, or
Their bridging visa was granted within 28 days of the substantive visa ending, or while holding another bridging visa granted during or within 28 days after a substantive visa.
Risk Factors and Policy Guidance
Key Risk Factors Under PIC 4013
1. Providing False Information (4013(1A))
If a previous visa was cancelled because the applicant provided incorrect information or bogus documents, they are affected by this risk factor. For example, if the Department determined that identity could not be verified or false educational records were used, the visa may be cancelled under s109 or s116(1AA).
However, if the ART overturns the cancellation or the Minister revokes it under personal powers (e.g., s133A or s133C), the applicant may no longer be subject to this risk factor.
2. Working Without Authority or Breaching Conditions (4013(2))
Includes cancellation due to:
Working without permission;
Breaching student visa attendance or performance requirements;
Remaining unlawfully after the expiry of a visa.
These apply even if the cancellation was under section 116, 128, or 133C.
3. Automatic Student Visa Cancellation (4013(2A))
A student visa automatically cancelled under s137J for low attendance or poor academic performance triggers this clause. If the cancellation is successfully revoked under s137L or s137N, the exclusion period may no longer apply.
4. Risk to Public Safety (4013(3))
A visa cancellation on the basis that the individual poses a threat to public health, safety, or good order — for example, due to serious criminal charges — may trigger this risk factor. If the ART or courts later set aside this decision, the applicant is not considered affected.
Key Risk Factors Under PIC 4014
1. Departure While Unlawful or on Specific Bridging Visas (4014(4))
If a non-citizen left Australia while on a Bridging C, D, or E visa or without any visa (i.e., unlawfully), they are affected by this exclusion.
Example 1: Exception Applies
If a person’s substantive visa ceased on 1 January 2019 and they were granted a Bridging Visa E (BVE) on 4 January 2019, which was then extended, and they departed while holding the second BVE, they are not affected by the 3-year exclusion due to compliance with PIC 4014(5)(b)(ii).
Example 2: Exception Does Not Apply
If someone’s visa expired on 20 January 2019 and they received their first BVE on 30 January 2019 (i.e., 10 days late), then left holding a third BVE after a sequence of late bridging visa grants, they are affected by the exclusion because they exceeded the 28-day limit.
Frequently Asked Questions (FAQs)
Q: Can I apply for a new visa if I’ve been affected by PIC 4013 or 4014? A: Yes, but you’ll either need to wait three years or demonstrate compelling or compassionate circumstances to overcome the exclusion.
Q: How do I prove compassionate or compelling circumstances? A: This can include serious health issues, family reunification, or economic contributions that benefit Australia or Australian citizens.
Q: What should I do if my visa was cancelled under section 116 or 137J? A: Seek legal advice immediately. If the decision is successfully appealed or revoked, you may no longer be subject to the risk factor.
Q: Is there discretion involved in applying PIC 4013 or 4014? A: Yes, a s65 delegate has the authority to grant a visa within the exclusion period if appropriate justification is provided.
Need Help with PIC 4013 or PIC 4014 Issues?
Dealing with visa cancellations or exclusion periods can be daunting. At One Planet Migration, our experienced team can assess your situation and help prepare a compelling case to meet Public Interest Criteria, especially 4013 and 4014.
Contact us today to get professional assistance and maximise your chances of visa success.
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Disclaimer: This article contains general information only and does not constitute legal advice. Although we strive to provide accurate and useful information, the nuances of Australian immigration law demand personalised advice from legal professionals. Given the dynamic nature of migration regulations, it is essential to consult with experienced immigration experts for tailored support.
