Client Information Sheet 30 JULY 2011

EXCLUSION PERIODS*
(Reflects law as at 1 July 2011)

Certain applicants who have been to Australia before may be subject to an exclusion period, or re-entry ban.

This can occur if the applicant:

• had a visa cancelled

• breached a condition, or overstayed their visa
• was removed or deported from Australia, or
• falls within a particular category of people (eg an AusAID student).

Different exclusion periods may apply depending on whether the person is applying for a temporary or
permanent visa. If more than one re-entry ban applies to a person then the longest exclusion period will apply.

In some circumstances it is possible to have the exclusion period waived but in others it is not. This will depend
on the type of exclusion period or re-entry ban which applies to you.

Note: unless an applicant has been deported from Australia or had a visa cancelled on criminal
grounds, exclusion periods do not apply to people who apply:

• as refugees;
• under the humanitarian program; or
• as carers.

In the case of applicants for Partner, Orphan Relative, Child or Adoption visas, no bans or
exclusion periods apply at all.

People deported from Australia or had visa cancelled due to criminal conduct

You will be permanently banned from entering Australia (on either a temporary or permanent basis) if:

• you are deported from Australia because of your criminal record

• you are deported from Australia for security reasons
• you left Australia voluntarily while subject to a deportation order because of your criminal record or
security reasons, and
• your visa is cancelled under section 501 of the Migration Act 1958 (Cth) because of your substantial
criminal record or past and present criminal conduct.

There is no provision for the re-entry ban to be waived. The only possible way that a person would be able to
re-enter Australia in these circumstances is if the cancellation decision is revoked or set aside on review or if
they are eligible for a Criminal Justice visa (which is granted to someone who is in Australia or extradited to
Australia to face criminal charges or as a witness in criminal proceedings in Australia).

*
IARC does not guarantee the accuracy of any information contained in this information sheet. It contains general information and is not a
substitute for legal advice

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What type of criminal activity will lead to this?

Generally a visa will only be cancelled under section 501 if you have a substantial criminal record. This means
that you:

• have been sentenced to death, or imprisonment for life

• have been sentenced to imprisonment for 12 months or more
• have been sentenced to 2 or more terms of imprisonment totalling at least two years, or
• have been acquitted of an offence on the grounds of insanity or unsoundness of mind, and have been
detained in an institution.

However, it is possible that the Minister may decide to cancel your visa on the basis of your general conduct
even if you do not fall within any of the categories specified above.

How do I know if I fall within this category?

If your visa is to be cancelled under section 501 then you may receive a notice of intention to cancel which will
give you the right to comment on why the Minister should not cancel your visa. If you receive such a notice
then you should immediately seek advice from an experienced registered migration agent as it is important that
you respond appropriately and within the required time period.

If the visa is subsequently cancelled then you will receive a notice specifying the section of the Migration Act
1958 (Cth) under which the visa is to be cancelled. You should check this carefully.

People removed from Australia

If you are ‘removed’ from Australia then you will be excluded from being granted a visa to re-enter Australia for
a period of 12 months after you were last ‘removed’. You can, however, apply for this exclusion period to be
waived (see below). The exclusion period applies to some permanent and all temporary visa applications.

Removal is where the Department of Immigration arranges for an unlawful non-citizen’s departure from
Australia. A person can only be removed if they are do not have a valid visa (eg in a detention centre, in a
prison or detained by the Department of Immigration in some other place such as an airport).

People whose visa is cancelled

If you have a visa which is cancelled other than because of your criminal conduct, then you are not excluded
from being granted a permanent or conditional temporary visa (see below) unless you were ‘removed’ from
Australia previously (see above).

However, you will not be granted a temporary visa for a period of 3 years from the date of cancellation (unless
waived – see below) if:

• your visa was cancelled because you gave the Department of Immigration incorrect information or bogus
documents
• your visa was cancelled because you worked without permission or breached a work, study or other
condition on your visa
• your Student visa was cancelled because the Minister was satisfied that you were not a student and
were not likely to be a student or because you breached any of the conditions (except the condition to
notify of change of address or condition not to change education providers)
• your Student visa was automatically cancelled because you breached your conditions relating to
attendance or satisfactory academic performance under section 137J
• your temporary Business visa (including an ETA) was cancelled because the Department of Immigration
was satisfied that you did not have, or ceased to have, the intention to stay in Australia temporarily for
business purposes

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• your temporary Tourist / Visitor visa (including an ETA) was cancelled because the Department of
Immigration was satisfied that you did not have, or ceased to have, the intention to stay in Australia
temporarily for tourism or visiting purposes, or
• your visa was cancelled because the Department of Immigration reasonably suspected that the holder
committed an offence under s 232A, s 233, s 233A, s 234 or s 236 of the Migration Act 1958 (eg a
people smuggling type offence, harbouring or fraud).

If your visa is cancelled on any other grounds (except for criminal conduct), and provided you leave Australia
within 28 days of having your visa cancelled, you will not face this exclusion period.

What is a conditional temporary visa?

A conditional temporary visa is a temporary substantive visa which will lead to the grant of a permanent visa if
the relevant conditions or criteria are satisfied. This includes:

• temporary Partner visa

• Prospective Marriage visa.

Unlawful non-citizens and Bridging visa holders

If you left Australia voluntarily after being unlawful (and have not had a visa cancelled) then you are not
banned from applying for a permanent or conditional temporary visa.

However, you will not be granted a temporary visa for a period of 3 years from the date of your last departure
from Australia (unless waived) if:

• you left Australia more than 28 days after the expiry of a substantive visa, or
• you left Australia while holding a Bridging visa C, D or E (or an extension of that visa) which was granted
to you more than 28 days after your substantive visa expired.

If you left while holding a Bridging visa A or B then this ban will not apply to you, whether you apply for a
temporary or permanent visa.

Overseas students

If you are or were an AusAID student or foreign government sponsored student then you cannot be granted a
permanent visa for a period of 2 years after you leave Australia (unless waived), except for the following visas:

• Partner
• Child
• Remaining Relative, Aged Dependent Relative, Carer or Orphan Relative
• Labour Agreement, Employer Nomination or Regional Sponsored
• Refugee or Humanitarian, and
• Prospective Marriage.

When can the exclusion period be waived?

The exclusion period may be waived where the compassionate and compelling circumstances in support of the
grant of the visa outweigh the considerations in support of exclusion. Therefore all factors of your case may be
relevant, especially the reasons for why you are excluded.

The exclusion period may be waived if you can show either:

• there was an error on the part of the Department of Immigration which resulted in the person being
subject to an exclusion period
• compelling circumstances that affect the interests of Australia, such as:

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- trade or business opportunities in Australia or for Australia would be lost if the person is not
allowed to return to Australia
- that the applicant has a special skill or trade which is desperately needed in Australia
- that the applicant for a student visa will be paying student fees and covering living expenses which
contributes to the Australian economy (although this argument alone is not sufficient)
- exclusion would damage Australia’s relations with a foreign government, or
• compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent
resident or eligible New Zealand citizen, such as:
- the Australian sponsor is ill and requires the applicant to assist them
- there are Australian citizen children
- the Australian sponsor is pregnant, or
- the applicant became unlawful as a minor.

What happens if I make a visa application within the exclusion period?

A non citizen can make a valid application within the exclusion period, but the visa cannot be granted unless
there are compelling or compassionate circumstances that justify the grant of the visa despite the exclusion
period (ie the exclusion period is waived). The exclusion period cannot be waived where you have had a visa
cancelled or you have been deported because of your criminal conduct or if you are assessed as a security
risk.

If you make an application within the exclusion period then you will be asked to give evidence of compelling
and compassionate circumstances to justify a waiver of the exclusion period. It is important that you respond to
any such request within the required time period which should be specified in the letter requesting the
information. If the exclusion period is not waived then your application will be denied and you will forfeit the
application fee. Therefore it is very important that you wait until the exclusion period has expired before making
your application if you do not have compelling and compassionate circumstances to justify the waiver of the
exclusion period.

Your application will be denied even if the exclusion period has expired at the time the decision is made. You
must wait until the exclusion period has expired before lodging the application.

Even if you are granted a visa during the exclusion period (ie because the exclusion period is waived), the
exclusion period will continue to apply to any other applications you make. Therefore, if you make another visa
application (including an application in Australia) you will again need to show compelling or compassionate
circumstances to justify the waiver of the exclusion period.

What if more than one exclusion period applies?

If you are subject to more than one exclusion period then the longest exclusion period will apply. For example,
if you are removed from Australia following cancellation of your Student visa because of breach of the work
conditions then you will be:

• excluded from being granted a permanent visa for a period of 12 months after your removal, and
• excluded from being granted a temporary visa for a period of 3 years after the date of the cancellation.

This will mean that you are excluded for a total of 3 years if you are making an application for a temporary visa
because this is the longer period.

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Contact Information

DEPARTMENT OF IMMIGRATION AND CITIZENSHIP (DIAC)

Counter service all NSW offices

9am–4pm Monday to Friday

Sydney CBD 26 Lee Street, Sydney 2000

GPO Box 9984, Sydney, NSW 2001

Parramatta 9 Wentworth Street

Parramatta NSW 2150
GPO Box 9984, Sydney, NSW 2001

National Telephone Inquiry Line: 131 881

Website: www.immi.gov.au

Immigration Advice and Rights Centre Inc (IARC)

Administration line: (02) 9279 4300 (between 9am and 5pm)

Website: www.iarc.asn.au

IARC Telephone Advice IARC Face-to-Face Advice (by appointment only)

(02) 9262 3833 Contact us to make an appointment at:

Tuesday and Thursday
2.00pm–4.00pm Immigration Advice and Rights Centre Inc.
Level 5, 362 Kent Street Sydney NSW 2000
Ph: +61 2 9279 4300 (Admin Line, 9-5pm)

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