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If you have been barred from returning to Australia, you may be subject to an exclusion period. In Australia, exclusion periods refer to the period someone is prohibited from entering the country or being granted another Australian visa due to a breach of immigration law. These exclusion periods can vary in length depending on the type and severity of the breach. However, they are typically up to three years.
You may be barred from entering Australia and subject to an exclusion period for several reasons. These include (but are not limited to):
- visa cancellation;
- departing Australia as an unlawful non-citizen (e.g. not holding a valid visa);
- departing Australia as a holder of a Bridging visa C, D, or E;
- removal or deportation from Australia;
- not complying with visa conditions or immigration laws.
This article will address how to assess if an exclusion period applies, the relevant criteria and when a waiver is applicable.
There are a few questions to ask to determine whether an exclusion period applies to you. However, as this is a somewhat complex assessment, you must obtain legal advice before applying for any visa.
1. Does the Visa Subclass I’m Applying for Have Any of the Following Criteria?
- Public Interest Criteria (PIC) 4013;
- Public Interest Criteria (PIC) 4014; or
- Special Return Criteria (SRC) 5001, 5002, 5010.
If the answer is no, there is no exclusion period. You can proceed to apply for the relevant visa.
However, if the answer is yes, you must check if this is still in force. If it is no longer in force, you can proceed to apply for the relevant visa. However, if it is still in force, move to step 2.
2. Do Your Circumstances Comply With the Relevant PIC And/or SRC Criteria?
If yes, you can proceed to apply for the relevant visa.
If no, move to step 3.
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3. How Do I Know If I’m Compliant?
Assess whether you fall into any of the categories below, noting the exceptions (4013, 4014, 5001, 5002, 5010). Similarly, assess whether the subsequent visa you want to apply for is subject to the exclusion periods.
If you fall into one of the categories, assess whether the applicable exclusion period has lapsed for you. If it has lapsed, you can proceed to apply for the visa. However, if it has not yet lapsed, the exclusion period applies to you. Consequently, you may need to request a waiver of the criteria (if available).
Note: It is possible to be subject to more than one exclusion period at one time, but these can run concurrently as long as they are both satisfied.
Public Interest Criteria 4013 – Visa Cancellation
| Public Interest criteria 4013 – Visa cancellation | Applicable if your visa was canceled due to one of the following reasons: + working without authority; + non-compliance with visa conditions; + non-genuine student visa holders, or student visa holders that breached performance or attendance requirements; + non-genuine temporary entrant; + non-genuine employer-sponsored visa holders relating to the occupation or position; + suspicion of contravention of law, fraudulent conduct; + incorrect information in digital passenger declaration; + suspicion that the person is a serious threat to public safety; + in immigration clearance; imported prohibited goods; and + posing a risk to the health, safety or good of Australia. |
| Exclusion period? | Three years since the cancellation date of the previous visa. |
| Can this be waived? | Yes, if you can demonstrate there are: + compelling circumstances affecting the interests of Australia; or + compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen that justify the visa grant within this three-year period. |
| Are there exceptions? | There are some exceptions for cancellations that are set aside by the court/tribunal or revoked in a way that deems the visa as ‘never cancelled’. |
Public Interest Criteria 4014 – Immigration Status on Departure
| Public Interest criteria 4014 – Immigration status on departure | Applicable if you left Australia as: + an unlawful non-citizen; or + the holder of a Bridging C, D or E visa. |
| Exclusion period? | Three years since the date of departure. |
| Can this be waived? | Yes, if you can demonstrate there are: + compelling circumstances affecting the interests of Australia; or + compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen that justifies a visa grant within this three-year period. |
| Are there exceptions? | Yes, if you left Australia as an unlawful non-citizen within 28 days after the substantive visa ceased. Yes, if you left Australia as a holder of BVC, BVD, BVE, if: + the bridging visa was granted within 28 days after the substantive visa ceased; or + a bridging visa was granted while holding another bridging visa (when holding a substantive visa, and within 28 days after a substantive visa held ceased) (e.g. first and second BVE). |
Special Return Criteria 5001 – Character
| Special Return criteria 5001 – Character | Applicable if: + you were deported as a non-citizen; + your visa was cancelled before 1 June 1999 because the Department was satisfied you were not of good character based on past criminal conduct; or + your visa was cancelled under s501/501A/501B on character grounds, and the cancellation was not revoked, you were not granted a PR after this, and the minister did not personally grant you a visa after that cancellation. |
| Exclusion period? | Permanent. You cannot lift the bar. |
| Can this be waived? | No. |
| Are there exceptions? | No. |
Special Return Criteria 5002 – Unlawful Non-Citizen
| Special Return criteria 5002 – Unlawful non-citizen | Applicable if you were removed as an unlawful non-citizen (including spouse/de facto partner and dependents of unlawful non-citizens). Note that some visas operate on a “one fails, all fail” approach, where all visa applicants may have a visa refusal because one is subject to an exclusion period. |
| Exclusion period? | 12 months after the date of removal. |
| Can this be waived? | Yes, if you can demonstrate there are: + compelling circumstances affecting the interests of Australia; or + compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen that justify the visa grant within this 12-month period. |
| Are there exceptions? | N/A |
Special Return Criteria 5010
| Special Return criteria 5010 – Foreign Affairs student visa / Foreign Government support | Applicable if one of the following is satisfied: + the non-citizen holds or previously held a Foreign Affairs student visa; + the non-citizen holds a student visa and receives financial support from a foreign government; or + the non-citizen’s last substantive visa was a student visa, and they received financial support from a foreign government. |
| Exclusion period? | Two years after the non-citizen ceased the course. |
| Can this be waived? | Yes, if the Minister is satisfied that compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen exist. |
| Are there exceptions? | Yes, if: + the course or training to which the above visa types relate was 12 months or less; + the non-citizen has spent at least 2 years outside Australia since they ceased the course to which their student visa relates; or + the Foreign Minister or the foreign government that provided financial support supports the grant of the visa. |
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Consequences
Ultimately, if successfully waived, the Department will process your application as satisfying the PIC/SRC criteria, assess the rest of the criteria, and provide you with an outcome. Alternatively, if your application is rejected, the Department will refuse your visa application because PIC/SRC criteria are not satisfied.
Even if you are subject to an exclusion period, this does not necessarily prevent you from lodging a new valid visa application. If you apply for the visa, you will be assessed whether a waiver can be applied appropriately. Alternatively, you can wait for the period to lapse and then apply.
Once you apply for a visa whilst in your exclusion period, the Department may inform you of the following:
- whether exclusion criteria apply;
- whether you can apply for the visa before the exclusion period has lapsed;
- whether you need to demonstrate compelling or compassionate grounds; and
- that you may not be refunded upon a visa refusal.
Accordingly, the Department can grant your visa whilst you are in an exclusion period where PIC 4013, 4014 or SRC 5002 applies, and in some instances, SRC 5010. This will depend on your compelling or compassionate circumstances and whether they justify a visa grant. However, the Department cannot grant your visa if you do not satisfy SRC 5001, and they cannot reduce your exclusion period given.
Suppose the Department chooses to grant your visa in one instance. In that case, the exclusion period will remain in effect until it lapses, meaning you would need to satisfy exclusion criteria again if you apply for another visa.
Key Takeaways
In summary, to avoid the above situations, it is important to stay aware of your visa expiry and visa conditions. However, if you have already been made subject to an exclusion period, you must know the exclusion period that applies to you and whether there are any ways to manage this. Exclusion periods can vary based on individual circumstances, and Australian immigration laws are subject to change.
If you need help with navigating an exclusion period, our experienced immigration lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
An exclusion period in immigration refers to a specific period during which an individual is, by default, not allowed to enter a country or be granted a visa to enter the country. The length of the exclusion period can vary depending on the circumstances of the individual case and can range from a one-year to a lifetime bar in some cases.
You may be barred from entering Australia and subject to an exclusion period for several reasons, including visa cancellation, departing Australia as an unlawful non-citizen, departing Australia as a holder of a Bridging visa C, D, or E, removal or deportation from Australia or not complying with visa conditions or immigration laws.
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