3 Year Ban On Visa | PIC 4013 & PIC 4014

3 Year Ban on Visa – if you applied for a temporary visa you may be required to satisfy a number of Public Interest Criteria or PIC. If you have previous been granted a visa and if your visa was cancelled or you remained in Australia without a visa (as an unlawful non-citizen) or you departed Australia while holding a Bridging Visa C or D or E you may be affected by a “risk factor”. If you are affected by a risk factor you may be prevented from applying for another visa.

The 3 Year Ban on Visa is known as the exclusion periods. The exclusion periods are the periods of time which you cannot be granted another visa if the 3 Year Ban on Visa applies to you. It does not prevent you from lodging a valid visa application.

Why have a 3 Year Ban on Visa or exclusion periods

The general purposes are to:

• identify a visa applicant who may pose a risk to Australia because of his or her previous breaches of immigration law and
• prevent that person from entering Australia.

In addition to PIC 4013 and 4014, section 32(2) prevents a NZ citizen who is a behaviour concern non-citizen and section 33(9) allows the Minister to declare it is undesirable for a person (or class of persons) to enter or remain in Australia.

Exclusion periods may also applied to those who were deported from Australia  under section 200; section 201 allows for the deportation of a PR or NZ holding SCV 444 to be deported if they have been convicted of an offence, e.g. sentenced to life imprisonment or for more than 1 year, in the last 10 years because of section 501, 501A or 501B cancellation; removed from Australia under s 198, 199 or 205.

3 Year Ban on Visa – PIC 4013

You will be affected by a risk factor (3 year ban on further visa grant) and you may not be able to satisfy PIC 4013 if your previous visa was cancelled under:

PIC 4013 (1A) risk factor

• Section 109 (non-compliance due to giving of incorrect information)
• Section 116(1)(d) (giving of incorrect information)
• Section 116(1AA) (not satisfied with your identity)
• Section 116(1AB) (giving of incorrect information to an authorised person or authorised system or the Minister or person named in the Act for the grant of your current visa)
• Section 128 (visa cancelled under section 116 while you are offshore)
• Section 133A (Minister’s personal powers to cancel visa under section 109 grounds – non-compliance under section 101 (incorrect answers on application form, 102 (incorrect answers on passenger card), 103 (giving of bogus docs), 104 (change of circumstances not notified) or 105 (incorrect answers given in application form or passenger card or a response given under s 107)
• Section 133C (Minister’s personal powers to cancel visa under section 116 ground

PIC 4013 (2) risk factor

• You were found working without authority (cancelled under section 116, 128 or 133C)
• Your visa was one of the below subclass and was cancelled because you did not comply with a Sch 8 condition specified
  • 405 (Investor Retirement) – Condition 8104 (working for more than 40 hours per fortnight)
  • 410 (Retirement) – Condition 8101 (No Work) or 8104
  • 500 (Student) – Conditions 8104, 8105 (Work before course starts or work more than 40 hours per fortnight – unless Masters by research or PhD), 8202 (must be enrolled in a full-time study), 8501 (OHSC), 8517 (school-aged dependant must study) or 8518 (must study)
  • 602 (Medical Treatment) – Conditions 8101 or 8201(cannot study for more than 3 months unless have permission)
  • 651 (eVisitor) – Conditions 8101, 8115 (No Work only business visitor activity) or 8201
  • 676 (Tourist) – Conditions 8101, 8201 or 8558 (must not stay more than 12 months in any period of 18 months)
  • 600 (Visitor) – Conditions 8101, 8115, 8201 and 8558
  • 771 (Transit) – Conditions 8101 or 8201
  • 601 (Electronic Travel Authority) – Conditions 8115 and 8201
• If you held a Border Subclass 773 visa which was cancelled  and at the time of visa grant, you were eligible for one of the above visa, but you did not comply with a condition specified.
• If you held a Student visa was cancelled because you is not or is likely not to be a genuine student or you engaged, is engaging, or is likely to engage, while in Australia, in a conduct (including omissions) not contemplated by the Act (section 116(1)(fa)).

PIC 4013(2A) automatic student visa cancellation risk factor

• If your previous visa was cancelled under section 137J (for not complying with student visa conditions reported by school) unless revoked under s 137L – did not breach visa condition or s 137N – revoke under public interest.

PIC 4013(3) risk factor – risk to health, safety or good order

• Your visa was cancelled because the Minister was satisfied that your presence in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community or the health or safety of an individual or individuals (section 116(1)(e) – click here to learn more).

However, you will not be affected by PIC 4013(1A) 3 Year Ban on Visa if the section 109 cancellation decision is set aside by the AAT or court; or the Minister revokes the cancellation under the Minister’s power under s 133A(3) (personal powers to cancel under s 109 grounds or under public interest) or s 133C(3) (personal powers to cancel under s 116 grounds or in the public interest); or the cancellation decision under s 116, s 128, s 133A or s 133C is set aside by a court; or the s 128 cancellation is revoked under s 131 (but this does not mean that visa was never cancelled: s 133(1)).

Alternatively, you may be affected by PIC 4013(2) risk factor if your previous visa was cancelled under s 116 or s 128 or s 133 unless the cancellation was subsequently set aside by a court or by AAT.

Similarly, you are not affected by PIC 4013(3) risk factor if the visa cancellation under s 116, s 128 or s 133C was set aside by a court or the Minister revoked the cancellation under s 133C(3).  

When does the 3 year ban start?

If you are affected by PIC 4013, the 3 year ban starts from the date the visa was cancelled.

If you are affected by PIC 4014, the 3 year ban starts from the date you departed Australia.

For SRC 5001, the start date is the date you were deported, or your visa was cancelled. There is no end date for your exclusion because this is a permanent exclusion.

For SRC 5002, the start date is when you are removed and ends 12 months after the date of your removal.

For SRC 5010, the start  date is when you ceased the course of study or training and ends 2 years after ceasing the course.

3 Year Ban PIC 4013 Waiver

If your visa is cancelled for one of the above reasons, you will be affected by a risk factor and will not be able to satisfy PIC 4013, you may ask the Minister to waive PIC 4013.

The Minister may lift or waive PIC 4013 if he is satisfied that:

1. there are compelling circumstances that affect the interests of Australia; or
2. there are compassionate or compelling circumstances that affect the interests of an Australian citizen, a PR or an eligible NZ citizen

justifying the granting of the visa within 3 years after the cancellation or determination (PIC 4013(1)(b)).

3 Year Ban on Visa – PIC 4014 (immigration status before departure)

You may be affected by a 3 Year Ban on Visa if you left Australia as (PIC 4014(4)):

• an unlawful non-citizen or you were in Australia without a valid visa
• holding a Bridging C or Bridging D or Bridging E visa.

However, the 3 Year Ban on Visa will not apply if (PIC 4014(5)):

(a).      you left Australia within 28 days after your last substantive visa ceased or

(b).      the bridging visa held by you at the time of your departure was granted:

            i.          within 28 days after your substantive visa ceased; or

            ii.         while you hold another bridging visa, which was granted:

(A) while you held a substantive visa; or

(B) within 28 days after the substantive visa ceased.

In short, if you overstayed your visa you may not be granted a temporary visa for 3 years after you leave Australia. You can still apply for a visa but the Department may not grant you the visa until a 3 year period has passed after you depart Australia.

Generally, PIC 4014 does not apply to the grant of a permanent visa, or a temporary visa that leads to the grant of a permanent visa, for eg, Subclass 309 visa (click here to learn more about this visa) or Subclass 820 visa (click here to learn more about this visa).

Explaining PIC 4014(5)(b)(i)

1. No 3 year ban

3 days after last substantive visa ceased, you applied for and was granted a BVE for 10 days to make arrangement to leave Australia. Within that 10 days you:

• applied for and was granted a further BVE as you need more time and
• depart Australia holding that further BVE.

In the above example, you are affected by PIC 4014(5)(b)(ii) because the BVE was granted immediately before the BE held at the time of leaving was granted within 28 days (here in 3 days) of your substantive visa ceasing. In this instance, the 3 Year Ban on Visa does not apply to you.

1. 3 year ban

10 days after your substantive visa ceased, you applied for and was granted a BVE for 20 days, on the 19^th day, you applied for and was granted another BVE valid for another 10 days. Before this BVE ceased, you applied for and was granted another BVE. You departed holding this BVE.

In this instance, PIC 4014(5)(b)(ii) does not apply to you, therefore you are affected by the 3 Year Ban on Visa because when you departed Australia on a BVE that was granted 29 days after your substantive visa ceased (1 day after the 28 days after substantive visa ceased).

When does the PIC 4014 3 year ban start?

The 3 year ban will commence on the day you departed Australia.

3 Year Ban PIC 4014 Waiver

If your visa is cancelled for one of the above reasons, you are affected by a risk factor and unable to satisfy PIC 4014, you may ask the Minister to waive PIC 4014.

The Minister may lift or waive PIC 4014 if he is satisfied that:

1. there are compelling circumstances that affect the interests of Australia; or
2. there are compassionate or compelling circumstances that affect the interests of an Australian citizen, a PR or an eligible NZ citizen

justifying the granting of the visa within 3 years after the cancellation or determination (PIC 4014(1)(b)).

Compelling circumstances

The following may be compelling circumstances affecting the interests of Australia if:

• Australia’s trade or business opportunities would be adversely affected if you are not granted the visa
• Australia’s relationship with a foreign government would be damaged if you are not granted the visa
• Australia would miss out on a significant benefit that you could contribute to Australia’s business, economic, cultural or other development (eg, you have a special skills that is highly sought after in Australia) if you are not granted the visa.
• You made every effort to leave while a lawful non-citizen but could not leave due to factor beyond your control, for eg, health issues, unavoidable delays by airlines or delays due to issue with travel docs or you were a minor when your visa ceased and you were not responsible for your own departure arrangements (unintended consequences).

The following will not be considered to be compelling circumstances:

• You work and pay taxes in Australia
• You pay fees to an education provider
• You spend money in Australia
• You did not know, or your agent did not inform you about your visa conditions
• There was no visa label and you were not aware of your visa expiry date
• You did not apply to have the cancellation revoked or reviewed

If you are a former Student visa holder and you are applying for a new Student visa, and you have a good study history, a genuine student, you are have not actively or intentionally abuse or sought to circumvent immigration laws – this may be compelling and compassionate reason to waive the 3 Year Ban on Visa exclusion periods.

The following may be compelling circumstances affecting the interests of an Australian citizen or PR or eligible NZ citizen:

• A business operated by an Australian citizen would have to close because of the lack of specialist skills required for the business
• Civil proceedings instigated by an Australian PR would be jeopardised by you not returning to Australia as a witness
• An eligible NZ citizen would not be able to finalise legal and property matter associated with divorce proceedings without your presence in Australia.

Compassionate circumstances

The following may be compassionate circumstances affecting the interests of an Australian citizen or PR or an eligible NZ citizen if you are not granted a 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 this child (for eg, the child was removed with you and is therefore subject to an exclusion period).

Changing name to avoid 3 Year Ban on Visa

You may not be able to avoid the exclusion periods simply by changing your name. Even if you are granted a visa under the new name and if the Department later become aware, your visa will be cancelled under s 116(1)(aa) – decision to grant you the visa was based, wholly or partly, on the existence of a particular fact or circumstances, and that fact or circumstance did not exist.

Bridging Visa A or B Holders

If you hold a Bridging Visa A or B, and you depart Australia before the Bridging visa expires, PIC 4014 does not apply to you.

In addition, you will not be eligible for a Bridging Visa E until your Bridging Visa A or B expires. Usually a Bridging Visa E will not be granted within 28 day immediately following the ceasing of your substantive visa.

When you are not affected by 3 Year Ban on Visa

You will not be affected by PIC 4014 or the 3 year ban on visa if:

• you leave Australia within the 28 day period immediately after your substantive visa ceasing; or
• you leave Australia holding a Bridging Visa C, D or E that was granted within the 28 day period immediately after your substantive visa ceasing; or
• you leave Australia holding a Bridging Visa C, D or E that was granted to you while you held another Bridging Visa. This other Bridging Visa must have been granted within the 28 day period immediately following the ceasing of your substantive visa.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you determine if you are affected by PIC 4013 or PIC 4014, the 3 year ban on visa.

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter