Meeting character requirements has always been an essential requirement of any Australian visa application.
Any breach of the Migration Act, or Migration Regulations can result in being excluded from returning to Australia usually for 3 years.
These bans or exclusion periods are known as Public Interest Criteria or “PIC”.
Breaking these PIC’s can result in a re-entry ban.
Some permanent residency visas may not attract compliance with the PICS 4013 and 4014 such as an offshore Partner visa (subclass 309/100), but overall character issues may always be considered such as those specified under section 501 of the Migration Act.
Public Interest Criteria 4013
This applies if a visa was cancelled for reasons such as:-
- Incorrect information or bogus documents provided by an applicant to the Department;
- The person was found to have worked without authority;
- The person did not comply with a visa condition specified in relation to that subclass of visa;
- In the case of a Student visa, the holder has not fulfilled the requirements of a ‘genuine’ student, such as attendance obligations;
- In the case of a Visitor visa, the holder is found to not be a temporary entrant;
- The visa holder in Australia is or may be, or would or might be, a risk to-
(i) the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii) the health or safety of an individual or individuals;
The exclusion period applies to 3 years from the cancellation date. Relief may be obtained on appeal to the Administrative Appeals Tribunal (AAT), Federal Circuit Court (FCC), Federal or High Court or personally by the Minister.
Public Interest Criteria 4014
This applies to a temporary visa holder if you have departed Australia:-
- As an unlawful non-citizen;
- As a holder of a Bridging Visa C, D, or E.
The Exclusion Period runs for 3 years from departure date.
How the Exclusion Period may be waived
The three year period cannot be reduced but in some circumstances a waiver may be granted.
This requires acceptance of compelling or compassionate circumstances of a specified type which:-
- Affect the interests of Australia;
- Affect the interests of an Australian citizen, Australian Permanent Resident or an eligible New Zealand citizen. This could be a family member or a prospective employer;
- Loss of significant benefit that the applicant could contribute to business, economic, cultural or other development of Australia. For example, a highly skilled trade, occupation or qualification not readily duplicated that would cause loss to Australia if the visa was not granted.
The Interest of Australian Citizen/ Permanent Resident/Eligible New Zealand citizen
Typical circumstances may be, such as:-
- A business operated by an Australian citizen that required special experience, skills or expertise to operate or train other employees, where if not granted may significantly affect the business or employment of existing Australians or New Zealand citizens;
- Legal proceedings requiring a witness for the benefit of an Australian citizen or corporation which would be jeopardised;
- A witness relating to family law, property or litigation requiring evidence of a non-citizen.
Exceptions to the 3-year Ban
- You departed Australia within 28 days of the ending of your last substantive visa;
- You departed on a bridging visa C, D or E, but the new bridging visa was granted within 28 days of the expiry of your last substantive visa;
- A new bridging visa was granted whilst still holding a previous bridging visa. The previous bridging visa was also granted whilst holding a substantive visa or within 28 days of that substantive visa expiring.
Unintended breach of visa
If the applicant had made every effort to leave Australia, but due to circumstances outside their control was not able to, the applicant may request a waiver of the exclusion period.
Examples of reasonable situations include, but not limited to:-
- Substantial health issues;
- Overseas airline delays that could not be avoided;
- Applicant was a minor at the time of the expiry of their visa and evidence confirms that they were not responsible for their own departure arrangements.
In the case of the student visa, if the applicant is a former holder of a student visa and their visa was cancelled due to them not fulfilling the requirements of a ‘genuine’ student, such as attendance, they may be able to waive the exclusion period. They must demonstrate that they are a genuine temporary entrant who truly wants to further their study in Australia.
Deciding whether ‘compassionate’ circumstances depends on each individual case. Some guidance is provided from current Migration Policy below on what may amount to compassionate circumstances:
There may be compassionate circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the person was not granted the visa:
- 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).
Onus on visa holder
Although there may be grounds to apply for a waiver, this will not always succeed. The onus is on a visa holder or bridging visa holder to be aware of expiry dates and other visa conditions!