Every visa has some form of character requirement. If you disregard immigration law, you are likely to find it much more tricky applying for further visas. Don’t become a risk factor!
Flouting certain rules can result in you facing exclusions periods. Exclusion periods are a ban on your return to Australia; you may apply for, but will not be granted any visa until the exclusion period is over. These exclusion periods typically last for 3 years. PICs, or public interest criteria, define the kinds of rule breaking and the resulting consequences. We discuss PIC 4013 and 4014, which are specific to landing yourself a re entry ban.
Some visas do not require PIC 4013 and/or PIC 4014 to be fulfilled but they are usually permanent residency linked visas. An example is the Partner (Provisional) visa (subclass 309). We urge you not to test your luck, as it is the vast majority of visas require the applicant to meet PIC 4013 and/or 4014.
PIC 4013
PIC 4013 applies if your visa was cancelled due to reasons related to:
- Providing false information or fake documents
- Working without work rights
- Breach of conditions under specific visa classes
- Failing to meet attendance or academic performance conditions on a student visa
- Adversely affecting the health, safety or good order of the Australian community
- Adversely affected the health or safety of individual(s)
- Have been found to not be a genuine temporary entrant on a visitor visa
If the cancellation decision has been set aside, revoked or taken to be set aside by the Administrative Appeals Tribunal (AAT), Minister or a Court, then PIC 4013 does not apply.
If faced with PIC 4013, the exclusion period is three years after the date of visa cancellation.
PIC 4014
PIC 4014 applies if you have departed Australia:
- As an unlawful non citizen
- As a holder of a Bridging Visa C, D or E
Exceptions
You are not affected if you:
- You have left Australia within 28 days of the cessation of your last substantive visa
- You have left on a Bridging Visa C, D or E, but a new bridging visa was granted within 28 days of the expiry of your last substantive visa
- The new bridging visa was granted while the applicant still held their previous bridging visa. This previous bridging visa must have also been granted whilst holding a substantive visa or was granted within 28 days of that substantive visa ceasing
If faced with PIC 4014, the exclusion period is three years from the date of departure.
Waiver of the exclusion period
The exclusion period cannot be reduced, but if you have compelling or compassionate reasons, you may be able to have your exclusion period waived. These compelling or compassionate circumstances must be ones that:
- Affect the interests of Australia
- Affect the interests an Australian citizen, Australian permanent resident or an eligible New Zealand citizen
- Relate to a further student visa
- Applicant made all efforts to leave Australia lawfully
Compelling circumstances
Affects interest of Australia
Examples of compelling circumstances may include (non-exhaustive):
- 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 or
- 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 vis
Affects interests of an Australian citizen/permanent resident/eligible New Zealand citizen
Examples of compelling circumstances may include (non-exhaustive):
- 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 or
- 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
Former student visa holders
If the applicant is a former student visa holder and had their visa cancelled due to poor attendance and/or academic performance, they may be able to waive the exclusion period if they are applying for another student visa and are able to demonstrate that they are indeed genuine temporary entrants who wish to further their study
Read: Genuine Temporary Entrant – Student 500 Visa
Unintended – made genuine effort to leave
If the applicant had previously made every effort to leave Australia is a lawful citizen, however was unable to do so due to factors out of their control, they may request for a waiver of the exclusion period.
Examples of reasonable circumstances include (non-exhaustive):
- Significant health issues
- Unavoidable airline delays
- Delays with the issuance of travel documentation
- Applicant was a minor at the time of the expiry of their visa and it can be demonstrated that they were not responsible for their own departure arrangements
Being unaware of one’s visa conditions or expiry are not considered to be compelling circumstances. Information is made available on the visa holder’s grant letter.
Compassionate circumstances
Compassionate circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen may include (non-exhaustive):
- 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 or
- 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)
We’ve been quite specific on what will land you a ban and how you might get it waived. Still, it’s no reason to play with fire. Unless you cannot help it, always be responsible in knowing what your visa cessation date is and what the attached conditions are.
Too late and in a pickle? Speak to a migration agent. Don’t fly into Australia unaware and be turning away at the airport. We’ve seen it happen! P.S. We also successfully helped in the waiver of the exclusion ban.
