Explaining the 3-year re-entry ban or exclusion period
You may have heard of certain persons being banned from entering Australia for a period of three (3) years, and you might be wondering if this would apply to you. As this is a question which has been raised more and more frequently during our consultations, and something which we have felt obliged to advise more and more prospective clients about, we thought we would publish a blog post explaining the 3-year re-entry ban and circumstances where this would apply.
Disclaimer: The information provided on our website or on any of our social media platforms is published for general informational purposes only and does not constitute legal advice. The information provided on our website or on any of our social media platforms about the migration regulations, policies and legislation is current as of the time it is published, and may be subject to change. Your use of the general information published on our website or our social media posts does not create a solicitor-client relationship between you and Inclusive Migration, and you should seek legal advice about your options from a legal practitioner or migration advice from a migration agent registered with the Office of the Migration Agents Registration Authority before proceeding with any application.
What is the purpose of the re-entry ban and where does it apply?
The general purpose of the re-entry ban (more technically referred to as an exclusion period) is to identify Visa Applicants who may pose a risk to Australia because of previous breaches of immigration law, and accordingly preclude certain non-citizens from being a granted a visa.
A re-entry ban often applies to people who have overstayed their visa in Australia or had their visa cancelled, thereafter preventing them from being granted another visa to travel to Australia for 3 years after the date of their departure. In practice, it most commonly applies to persons who depart Australia as an unlawful non-citizen, the holder of a Bridging visa C as well as a Bridging visa E more than 28 days after their most recent substantive visa expired, and generally starts from the date the person left Australia.
A re-entry ban may also apply to people whose visa was cancelled under sections 109, 116, 133A, 128, 133C or 137J of the Migration Act 1958 (Cth), likewise preventing them from being granted another visa to travel Australia for 3 years after the date of cancellation of the visa or the Minister’s determination of the cancellation of the visa.
Furthermore, a re-entry ban may also apply to people who have provided bogus documents or information that is false or misleading and accordingly have been refused a visa on the basis of Public Interest Criterion (PIC) 4020 of the Migration Regulations 1994 (Cth), in the period starting 3 years before a visa application was made, ending when the visa application is granted or refused.
Additionally, if the re-entry ban applies to a person who is being included in a Primary Applicant’s visa application as a Secondary Applicant, depending on the regulatory criteria for the visa subclass that is being applied for, the Secondary Applicant being subject to the exclusion period may prevent the Primary Applicant from satisfying the regulatory requirements for the grant of the visa, even if the Primary Applicant is not subject to an exclusion period.
For instance, a re-entry ban may apply in the following circumstances:
you overstay your visa by more than 28 days; and/or
your visa is cancelled because:
you are considered to be a risk to the health, safety or good order of the Australian community
you are convicted of an offence against a law of the Commonwealth, or a law of an Australian state or territory
you are found to have breached a visa condition, for example, you worked when your visa had a no work condition
you hold a student visa but have failed to maintain appropriate enrolment, breached another visa condition, or have been found not to be a genuine student
you hold a visitor visa but were found not to be in Australia as a genuine visitor
you provided false documents or false information to the Department of Home Affairs
Does the re-entry ban apply to everyone who departed Australia on a bridging visa?
The 3-year exclusion period may apply to the above persons if they subsequently apply for a visa which is subject to Public Interest Criterion (PIC) 4014 of the Migration Regulations 1994 (Cth). In this regard, PIC 4014 states that a person is affected by a risk factor if the person left Australia as an unlawful non-citizen or the holder of a Bridging visa C, Bridging visa D or Bridging visa E more than 28 days after their most recent substantive visa expired.
PIC 4014 further states that if the risk factor applies, the application must either be:
made more than 3 years after the departure of the person from Australia (i.e. the person is applying for a visa more than 3 years after the date of departure); or
the Minister is satisfied that in the particular case, 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 eligible New Zealand citizen;
that justify the granting of the visa to this person within 3 years of the departure.
PIC 4014 applies to many temporary visas such as the Visitor (Subclass 600) Visa and Temporary Skill Shortage (Subclass 482) Visa, although not all temporary or provisional visas are subject to PIC 4014, such as the Partner (Subclass 309) visa. Nonetheless, if a person who last left Australia as an unlawful non-citizen or the holder of a Bridging visa C, Bridging visa D or Bridging visa E (more than 28 days after their most recent substantive visa expires) wishes to subsequently obtain another visa which is subject to PIC 4014, he/she will have to either -
apply for the visa more than 3 years after the date of his/her departure; or
demonstrate 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 eligible New Zealand citizen.
Does the re-entry ban apply to everyone whose visa was cancelled?
The 3-year exclusion period may apply to the above persons if they subsequently apply for a visa which is subject to Public Interest Criterion (PIC) 4013 of the Migration Regulations 1994 (Cth). In this regard, PIC 4013 states that a person is affected by a risk factor if a visa previously held by the person was cancelled under sections 109, 116, 133A, 128, 133C or 137J of the Migration Act 1958 (Cth).
PIC 4013 further states that if the risk factor applies, the application must either be:
made more than 3 years after the cancellation of the visa or determination by the Minister that the ground for cancellation applied to the person; or
the Minister is satisfied that in the particular case, 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 eligible New Zealand citizen;
that justify the granting of the visa to this person within 3 years of the cancellation or determination.
PIC 4013 applies to many temporary visas such as the Visitor (Subclass 600) Visa and Temporary Skill Shortage (Subclass 482) Visa, although not all temporary or provisional visas are subject to PIC 4014, such as the Partner (Subclass 309) visa. Nonetheless, if a person who last left Australia as an unlawful non-citizen or the holder of a Bridging visa C, Bridging visa D or Bridging visa E (more than 28 days after their most recent substantive visa expires) wishes to subsequently obtain another visa which is subject to PIC 4014, he/she will have to either -
apply for the visa more than 3 years after the date of his/her departure; or
demonstrate 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 eligible New Zealand citizen.
Does the re-entry ban apply to everyone who has provided false or misleading information in a visa application?
Persons who have provided false or misleading information in a previous visa application and accordingly had their visa application refused under Public Interest Criterion 4020 of the Migration Regulations 1994 (Cth) are subject to a 3-year re-entry ban, such that they cannot be granted a visa if it has been less than 3 years since they or an accompanying family member included in the visa application were refused a visa application under PIC 4020.
PIC 4020 further extends this 3-year period as including visa refusals up until a decision is made on the current visa application, which means that even if a person or an accompanying family member being included in a visa application are refused another visa application under PIC 4020 after lodgement but during the processing of the current visa application, the 3-year re-entry ban may prevent the current visa application from being granted.
Can both PIC 4013 and PIC 4014 apply to a Visa Applicant?
More than one (1) exclusion criterion may apply at the same time to a Visa Applicant, and where both PIC 4013 and PIC 4014 apply, the Visa Applicant will be assed against both exclusion criteria. For instance, if a person’s previous visa was cancelled under sections 109, 116, 133A, 128, 133C or 137J of the Migration Act 1958 (Cth), and this person subsequently left Australia as an unlawful non-citizen, or the holder of a Bridging visa C, Bridging visa D or Bridging visa E more than 28 days after their most recent substantive visa expired, both PIC 4013 and PIC 4014 may prevent this person from being granted another visa to travel to Australia for a period of three (3) years after the relevant event.
Can the 3-year re-entry ban be waived?
An exclusion period may be waived for the grant of a visa application which is made less than 3 years after the date of departure or date a visa was cancelled/determined, if there are compelling and compassionate circumstances that affect the interests of Australia or an Australian citizen, permanent resident or eligible New Zealand citizen.
Compelling interests that affect the interests of Australia may include the following circumstances -
Australia’s trade or business opportunities would be adversely affected were the non-citizen not granted the visa;
Australia’s relationship with a foreign government would be damaged were the non-citizen not granted the visa; or
Australia would miss out on a significant benefit that the non-citizen 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 non-citizen was not granted the visa.
Compelling and compassionate circumstances affecting the interests of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen may include the following circumstances -
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.;
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).
It is important to note that the threshold for proving compelling and compassionate circumstances is very high, and any such claim must be substantiated by documentary evidence, on a case-by-case basis. Due to the complex nature of such applications, Visa Applicants seeking a wavier of the exclusion period in a visa application are encouraged to seek legal advice and representation prior to proceeding with such an application.
If I am subject to a 3-year re-entry ban, will I be fine as long as I apply for another visa after 3 years have passed?
It is important to note that even though the re-entry ban may not apply to persons who are applying for another visa more than 3 years after the relevant event (i.e. after they previously overstayed a visa in Australia, departed Australia, had a visa cancelled or determined or had a visa application refused after providing false or misleading information etc.), their adverse immigration history may certainly result in significant complications in a subsequent visa application, as well as increased processing times due to the likelihood of any future visa applications they lodge being scrutinised by the Department.
For instance, if you previously overstayed a visa in Australia and are now applying for a Visitor (Subclass 600) visa which is subject to the Genuine Temporary Entrant (GTE) requirement, you may face difficulties satisfying the Department that you are now a genuine visitor to Australia who intends to comply with the conditions to which your Visitor Visa would be subject. Additionally, if you were previously found to have provided the Department with bogus documents or information that is false or misleading, you may be subject to a higher level of scrutiny when the Department assesses the veracity of any claims you make about satisfying the requirements for the grant of a visa.
Visa Applicants with an adverse immigration history, including where they were previously refused a visa, had a visa cancelled or overstayed a visa in Australia are encouraged to seek legal advice and representation prior to proceeding with another visa application.
What about the 10-year re-entry ban?
For more information about the 10-year re-entry ban, please refer to our free visa guide explaining the circumstances where a 10-year re-entry ban or exclusion period may apply.
Should you wish to discuss your visa eligibility where you or an accompanying family member may potentially be subject to a re-entry ban or exclusion period, please email info@inclusivemigration.com.au or submit an enquiry using the contact form on our website.
