Having a Visa refused or cancelled can cause significant issues if you want to obtain a further visa for Australia.

Australia has some of the strongest border protection measures in place when it comes to allowing people to get a visa in circumstances here their visa is cancelled or refused.

Refusal or cancellation due to character issues

This is the most serious form of refusal or cancellation.

It can often result in a permanent exclusion from Australia or prohibit you form making a valid application for a visa whilst you are in Australia.

It will also invalidate any other visa application you have lodged and cancel any visa you hold.

Refusal or cancellation due to non-character related issues

Refusal for non-character related issues is not fatal to any other application for a visa but can have dramatic implications as to where and when you can apply for the visa.

For example you may be eligible for the grant of certain visas such as a partner visa (subject to meeting certain additional requirements).

If your visa is cancelled you will not automatically be granted a bridging visa you will have to apply for one.

The only bridging visa you will be eligible for is a bridging visa E to allow you to make arrangements to leave Australia or to remain in Australia if you appeal the refusal or cancellation.

What are the exclusion periods and re-entry bans and how are they determined?

Any further visa application will be assessed against Public Interest Criteria (PIC) and Special Return Criteria (SRC).

What is a Public Interest Criterion?

Australia’s migration legislation affords the Minister a discretion to grant, refuse to grant, or cancel a person’s visa.

There are a range if PICs so how does the public interest apply to visa holders and applicants?

The public interest or ‘safety net’ discretion that the Minister may exercise is much broader than the requirements of the regulatory criteria.

Basically, the Minister has the ability to consider the ‘public interest’ in making a decision sits above all other decision-making powers – including by the Department and in some cases, the Tribunals.

It is said this discretion protects the public from a decision that may not be legally incorrect but would be undesirable from a policy perspective.

PIC 4013

If your visa has been cancelled, you may be restricted from applying for another visa for 3 years, unless the Department of Home Affairs (DoHA) is satisfied that one of the following is satisfied:

• compelling circumstances that affect the interests of Australia exist; or
• compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen exist.

The 3-year Exclusion Period Commences on the date when your visa was cancelled.

PIC 4014

If you depart Australia in one of the following circumstances, you cannot be granted a further visa for 3 years

• as an unlawful non-citizen (meaning you do not hold a valid visa); or
• as the holder of a Bridging Visa C (BVC), Bridging Visa D (BVD) or BVE.

This can be waived if the DoHA is satisfied that one of the following is satisfied:

• compelling circumstances that affect the interests of Australia exist; or
• compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen exist.

PIC 4014 does not apply if you left Australia:

• within 28 days of your substantive visa ceasing; or
• as the holder of a BVC, BVD or BVE which was granted:

• within 28 days of your substantive visa ceasing; or
• whilst you held another Bridging Visa (which itself was granted while you held a substantive visa, or within 28 days of it expiring).

The 3-year exclusion period commences on the date when you left Australia.

PIC 4020

During a visa application if you supply a bogus document or false or misleading information in relation to your visa application, your visa may be refused under PIC 4020.

You will be prohibited from being granted a visa to Australia for a period of 3 years.

This can be waived if the DoHA is satisfied that one of the following is satisfied:

• compelling circumstances that affect the interests of Australia exist; or
• compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen exist.

If the DoHA is not satisfied as to your identity, you may be excluded from being granted a further visa for 10 years. There is no waiver for this requirement.

What is a Special Return Criteria?

SRC 5001

If you leave Australia as a result of a deportation order, or if your visa is cancelled on character grounds, you may be subject to permanent exclusion from Australia under SRC 5001, unless the Minister personally grants you a permanent visa. There is no waiver for this requirement.

SRC 5002

If you are removed from Australia (as an unlawful non-citizen), you will be subject to a 12-month exclusion period.

This can be waived if the DoHA is satisfied that one of the following is satisfied:

• compelling circumstances that affect the interests of Australia exist; or
• compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen exist.

The 12-month exclusion period commences on the date when you were removed from Australia.

SRC 5010

Under SRC 5010, if you currently, or previously, held a specified type of student visa, you cannot be granted a visa unless you have been outside Australia for at least two years since you ceased your course of study or training.

SRC 5010 does not apply in the following circumstances:

• the course was designed to be completed for a period of 12 months or less; or
• if the course was designed to be completed over a period of more than 12 months, the Foreign Minister or foreign government that supported the grant of the student visa also supports the grant of the current visa being applied for (this can be waived in certain limited circumstances as outlined for the PIC and SRC referred to above).

SRC 5010 applies to the following applicants:

• current or former holder of a Foreign Affairs student visa;
• current holder of a student visa which was granted with financial support from a foreign Government; and
• previous holder of a student visa which was granted with financial support from a foreign Government, who has never held a Foreign Affairs student visa and who does not currently hold a substantive visa.

The 2-year exclusion period commences on the date when you ceased your course of study or training.

How can FC Lawyers help with your exclusion periods and bans?

Our expert team including accredited specialists have acted for hundreds of clients who have had their visa refused or cancelled.

We have represented clients in appeals to the Administrative Appeal Tribunal, to the Federal Court and seeking Ministerial interventions.

It is very important to get expert advice on issues like exclusion periods and bans.

Contact our team today to discuss your options for exclusion periods, bans and visa cancellations.

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