What Is An Exclusion Period And When Does It Apply?

What Is An Exclusion Period And When Does It Apply?

An exclusion period is a period of time during which an applicant cannot be granted another visa to travel to, enter and remain in Australia, whether or not they meet visa requirements. You will be able to make the application but will be unsuccessful, and will have wasted time or money on application fees.

Exclusion periods exist to identify applicants who may pose a risk to Australia due to previous breaches of immigration law, and to hinder their entry into Australia.

 

Who is affected by exclusion periods?

You will be subject to an exclusion period if the visa regulations for your particular subclass prescribes one of the following Public Interest Criteria or Special Return Criteria below and your circumstances matches their rules:

  • Public Interest Criteria (PIC) 4013
  • Public Interest Criteria (PIC)  4014
  • Special Return Criteria (SRC) 5001
  • Special Return Criteria (SRC) 5002
  • Special Return Criteria (SRC) 5010

Most temporary visas are affected by PIC 4013 and 4014. Permanent visas are likely to be unaffected. Some of the visas that are affected by exclusion periods are also affected by the “one fails, all fail” criteria, which means that any member of the family unit applying with the main applicant who cannot satisfy the above criteria will result in the application for the entire family failing.

First determine if the visa you are applying for has any of the Public Interest Criteria or Special Return Criteria listed above. If it does and you do not meet the PIC or SRC criteria, an exclusion period may apply to you.

 

If the visa you are applying for requires you to meet PIC 4013

An applicant will not meet the PIC 4013 requirement and therefore face an exclusion period if they fall under one of the following risk factors:

  • PIC 4013(1A) risk factor
  • PIC 4013(2) risk factor
  • PIC 4013(2A) risk factor
  • PIC 4013(3) risk factor

The applicant who is affected by a risk factor under Public Interest Criteria (PIC) 4013 will face an exclusion period of 3 years from when their visa is cancelled. The PIC risk factors are very intensive topics so please be aware that this is an only an overview.

If your visa was cancelled but later that cancellation was revoked or set aside, the exclusion period will not apply.

 

PIC 4013(1A) risk factor

Previous visa was cancelled due to their having provided incorrect information or bogus documents to the Department of Home Affairs (DOHA)

 

PIC 4013(2) risk factor

The visa was cancelled under the following circumstances:

  • The visa holder was found to have worked without rights to do so
  • The visa holder who held a visa listed in this table  breached their visa condition(s)
  • A Border 773 visa holder who was apparently eligible for a visa listed in this  table time at the time the Border visa was granted, breached their visa condition(s)
  • A former student visa holder on the grounds of not being a genuine student or academic misconduct
  • Holders of a broad number of temporary visas that are found to not have intention to be a genuine temporary entrant
  • The visa holder has committed an offence and/or is an immediate threat to public safety
  • The visa was obtained through fraudulent conduct

 

PIC 4013(2A) risk factor

The student visa was cancelled based on breaching of a condition relating to attendance or satisfactory academic performance

 

PIC 4013(3) risk factor

The visa was cancelled because the visa holder was or would be a risk to the health, safety or good order of the Australian community or a segment of the community, or to the health or safety of an individual or individuals

 

Exceptions to PIC 4013

Exceptions apply if there are compelling circumstances that affect the interests of Australia or that there are compassionate and compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen. See below.

 

If the visa you are applying for requires you to meet PIC 4014

An applicant will not meet the PIC 4014 requirement if they if they left Australia (at any point) as an unlawful non-citizen or as the holder of a Bridging visa C, D or E and will face an exclusion period of 3 years from when they leave Australia.

Read: The ABC’s of bridging visas

 

Exceptions to PIC 4014

A person who leaves Australia as an unlawful non-citizen is not affected by an exclusion period if they leave Australia within 28 days of their substantive visa ceasing to be in effect.

Also, a person who leaves Australia as a holder of a Bridging C, D or E visa is not subject to an exclusion period if

  • The Bridging visa held when leaving Australia was granted within 28 days of their substantive visa ceasing to be in effect, or
  • The Bridging visa held when leaving Australia was granted while the person held another Bridging visa, and that Bridging visa was granted whilst they held a substantive visa or within 28 days of that substantive visa ceasing

Exceptions also apply if there are compelling circumstances that affect the interests of Australia or that there are compassionate and compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen. See below.

 

If the visa you are applying for requires you to meet SRC 5001

If you have been deported from Australia, you will not meet Special Return Criteria (SRC) 5001 and will face a permanent exclusion period, which means you can never successfully apply for another Australia visa.

If your visa was cancelled based on character grounds (criminal conduct) under s501 of the Act, you also will face a permanent exclusion period.

 

Exceptions to SRC 5001

The exclusion period does not apply to you if:

  • Your deportation order was revoked or set aside
  • Your visa was cancelled on other grounds
  • Your visa was refused (not cancelled) based on character grounds
  • The cancellation has been revoked under s501C(4) or 501(CA)(4) of the Act
  • The cancellation took place but the Minister has personally granted a permanent visa after the event

 

If the visa you are applying for requires you to meet SRC 5002

If you have been removed from Australia and the visa you intend to apply for has a 5002 criterion, you will face an exclusion period of 12 months from the time you have been removed from Australia. You may have been removed under s198, s199 or s205 of the Act.

S198: Removal of unlawful non citizens

S199: Removal of dependents of unlawful non citizens

S205: Removal of dependents of deportees

 

Exceptions to SRC 5002

Exceptions apply if there are compelling circumstances that affect the interests of Australia or that there are compassionate and compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen. See below.

 

If the visa you are applying for requires you to meet SRC 5010

If you hold or held a Foreign Affairs student visa or a student visa and receive(d) the financial support of the government of a foreign country, you will face an exclusion period of two years from the time of completion of the course or training.

 

Exceptions to SRC 5010

The exclusion period does not apply to you if:

  • The course or training for the listed visa types is 12 months or less
  • The Foreign Minister or the foreign government that provided financial support, supports the grant of the visa

Exceptions also apply if there are compelling circumstances that affect the interests of Australia or that there are compassionate and compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen. See below.

 

Multiple exclusion periods

A person may be subject to multiple exclusion periods. For example, if they have provided incorrect information (PIC 4013) and was removed from Australia (PIC 5002), their exclusion period would be:

  • 3 years after the cancellation of their previous, and
  • 12 months after their removal from Australia

 

Exceptions based on compelling and compassionate reasons

Exceptions may apply if there are compelling circumstances that affect the interests of Australia or that there are compassionate and compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen.

 

Compelling circumstances

Compelling circumstances could include and are not limited to:

  • Australia’s trade or business opportunities would be adversely affected were the person not granted the visa
  • Australia’s relationship with a foreign government would be damaged were the person not granted the visa
  • Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa

Unintended consequences are situations in which a person has made every effort to leave Australia as a lawful non-citizen but failed to due to circumstances beyond their control. These include and are not limited to:

  • Health issues
  • Unavoidable delays by airlines
  • Delays associated with the issue of travel documents
  • They were a minor at the time their visa ceased and it can be demonstrated that they were not responsible for their own departure arrangement

Compelling circumstances that affect the interests of an Australian citizen or permanent resident could include and is not limited to:

  • A business operated by an Australian citizen would have to close down because it lacked the specialist skills required to carry out the business
  • Civil proceedings instigated by an Australian permanent resident would be jeopardised by the absence of the non-citizen witness
  • An eligible New Zealand citizen would be unable to finalise legal and property matters associated with divorce proceedings without the physical presence of the non-citizen in Australia

 

Compassionate circumstances

Compassionate circumstances that affect an Australian citizen, permanent resident or eligible New Zealand citizen could include but is not limited to:

  • Family members in Australia would be left without financial or emotional support
  • Family members in Australia would be unable to properly arrange a relative’s funeral in Australia
  • A parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and is therefore subject to an exclusion period)

Do you think that an exclusion period may apply to you? Are you in a sticky situation and unsure of how to avoid getting into trouble with the DOHA? Or perhaps you have compelling and compassionate circumstances and would like advice on how to present these to the DOHA. Australian Immigration Law Services can help! Call us at +61 2 8054 2537 or book an appointment online.

Do you think that an exclusion period may apply to you? Are you in a sticky situation and unsure of how to avoid getting into trouble with the DOHA? Or perhaps you have compelling and compassionate circumstances and would like advice on how to present these to the DOHA. Australian Immigration Law Services can help! Call us at +61 2 8054 2537 or book an appointment online.