Visa Exclusion Periods (Public Interest Criteria 4014)

In certain circumstances, a foreign national may be prevented from being granted a visa to Australia, known as a visa exclusion period. These exclusion periods can be:

• permanent – for example, individuals who have been deported from Australia or had their visas cancelled for reasons of their character; or
• temporary – for example, certain people who have had their visas cancelled (for reasons other than character), certain people who left Australia as an unlawful-non-citizen (or the holder of certain Bridging Visas), or people who have had their visas refused for providing false or misleading information or bogus documents.

This article deals with one of the more common visa exclusion periods, relating to people who left Australia as an unlawful non-citizen (i.e. with no visa), or the holder of certain Bridging Visas (Bridging Visa C, D, or E).

This is an important consideration not only for people who are already affected by these exclusion periods, but also worth being aware of for individuals who have overstayed the permitted duration of their visa or are the holder of the relevant Bridging Visas, to avoid falling within the scope of these exclusion periods.

These exclusion periods, the duration, and exemptions are outlined in further detail below.

What is an exclusion period?

In this context, a visa exclusion period is a temporary period (specifically, 3 years) where a person cannot be granted a visa to Australia.

Practically, it is a criteria for most visa applications that the visa applicant must satisfy various Public Interest Criteria (PIC). Generally, this relates to satisfying the Department of Home Affairs (Department) that you satisfy certain identity, health, character, and security checks.

The exclusion period is set by applicants being required to satisfy the criteria set out in PIC 4013, which:

• applies to nearly all temporary visas to Australia. This includes for example, Visitor, Student, Working Holiday, and employer sponsored work visas (such as the TSS Subclass 482 and SESR Subclass 494 visas);
• does not apply to permanent visas, or “provisional” visas such as the Business Innovation and Investment (Subclass 188) visas, or the Skilled Work Regional (Provisional) Subclass 491 visa, or the Partner visas.

If you are subject to a visa exclusion period and apply for a visa where PIC 4013 is a criteria, you would not be able to be granted the visa.

What is PIC 4014?

PIC 4014 applies to people who:

• left Australia as an unlawful non-citizen; or
• as the holder of a Bridging Visa C, D, or E.

However, the above does not apply to a person if:

1. they left Australia within 28 days after the substantive visa they held ceased; or
2. the bridging visa the held at the time of departure was granted:
   1. within 28 days after the substantive visa held by the person ceased; or
   2. while the person held another bridging visa granted:
      1. while the person held a substantive visa; or
      2. within 28 days after the substantive visa held by the person ceased.

As an example, if a person has a substantive visa that ceased on 1 January 2023, they would become an unlawful non-citizen the next day. To avoid being affected by PIC 4014, they would need to either:

1. leave before 29 January 2023; or
2. obtain a Bridging Visa before that date, and leave Australia on that Bridging visa; or
3. leave Australia on a second Bridging Visa (2^nd BV) that was granted while they held their first Bridging Visa (1^st BV), which itself was granted:
   1. when they held a substantive visa (i.e. before 1 January 2023); or
   2. within 28 days after a substantive visa held ceased (i.e. before 29 January 2023).

Point 3 can be very confusing and it’s always worth seeking legal advice if you’re unsure about this particular point.

How long is the visa exclusion period for?

If a visa applicant is captured by the above, they cannot satisfy PIC 4014 (and thus would not satisfy the criteria to be granted the relevant visa) unless the new visa application is made more than 3 years after the person departed from Australia.

For example, a person affected by PIC 4014 who departed Australia as an unlawful non-citizen on 1 July 2023 would need to ensure that any future visa application was made after 1 July 2026.

Is there an exemption to the visa exclusion period?

Other than waiting for the exclusion period outlined above to end, a person can still satisfy PIC 4014 and be granted the visa if the Minister is satisfied that there are either:

1. compelling circumstances affect the interests of Australia; or
2. compassionate or compelling circumstances that affect the interests of an Australian citizen, PR or eligible New Zealand citizen;

justifying the grant of the visa within 3 years after their departure.

There may be additional criteria that you need to meet – such as Schedule 3 criteria for a Partner visa for example – so it may be appropriate to obtain legal advice before making such an application.

Is there any way around the exemptions?

Unfortunately, no. As the above “exemptions” are in the legislation, there are no further powers (or ability) for people who do not meet the above to be able to be granted a further visa where PIC 4014 is a criteria.

What are common scenarios where PIC 4014 would apply?

There are several scenarios where people become affected by PIC 4014, this includes situations where:

• a person forgets their visa expiry date, and inadvertently overstays their visa by more than 28 days;
• certain people attempt to seek Ministerial Intervention (and so is important to factor as part of the considerations) and obtain their Bridging Visa E (BVE) 28 days after their last substantive visa ceases;
• people who obtain multiple Bridging Visa E (BVE) to “depart” Australia.

Conclusion

Hannan Tew Lawyers have assisted a significant number of individuals who have been affected by PIC 4013 and PIC 4014, and given them advice on how to navigate such circumstances. We have also given strategic advice to ensure that individuals are not in such situations, and factor this consideration in for each client.

Please feel free to contact us by email at [email protected] or phone +61 3 9016 0484 if you have further comments or queries or would like some guidance.

This document does not constitute legal advice or create an attorney-client relationship. Please consult an immigration professional for up to date information.