What does a re-entry ban mean? What is a public interest criteria or PIC? If you have overstayed a Visa in Australia, or if you have provided false documents or information to the Immigration Department, then you may have come across these terms before. So let’s take it one step at a time. UPDATE: Check out our video recently published on our YouTube channel. Plain English summary of how re-entry bans work.
Re-entry ban: simple explanation
A re-entry ban means that your name is registered in the Immigration Department’s computer system and if you apply for an Australian visa, they will simply not grant it – meaning you are not able to enter Australia. This ban may be temporary, commonly 3 years. Alternatively, it may be permanent.
Public Interest criteria
How does a public interest criteria come into play? The way in which the Immigration Department applies the re-entry ban is that they say that you can’t enter Australia because you cannot satisfy a particular public interest criteria.
If this is confusing, let me illustrate it with a practical example. Let’s say you apply for a visitor visa. They will only grant you this visa if you can satisfy a range of different public interest criteria. One of these states that if you previously overstayed a visa by more than 28 days, then a period of 3 years must pass before they can grant you a new visa. So, if you apply for a new visa before the expiry of this 3 year period, then you will not satisfy this particular public interest criteria. And if you don’t satisfy the criteria, they won’t grant you the visa, meaning you can’t enter the country. So this is the relationship between a re-entry ban and a public interest criteria.
Does a re-entry ban apply to you?
Whether a re-entry ban applies in your case depends on 2 things. Your visa/breach history (i.e. your previous conduct) and secondly, the type of visa you are applying for.
To take the above example, let’s say you previously overstayed your visa by more than 28 days. Let’s also assume that you are now applying for a visitor visa. This means a re-entry ban will apply and you can’t get the visitor visa for 3 years. However, if you were to apply for a permanent visa instead, for example a Partner Visa, then the re-entry ban would not apply. Why? Because visitor visa applicants must satisfy more public interest criteria then Partner Visa applicants. The public interest criteria which imposes a 3 year ban on people who previously overstayed a visa by more than 28 days does not apply if you submit a Partner Visa application.
So the type of Visa you’re applying for can make a big difference as to whether a re-entry ban applies to you.
But as I said before, the other issue to consider is your previous conduct. If, for example, you previously provided false documents or information to the Immigration Department then that is considered a serious offence, attracting a 3 year ban. The relevant public interest criteria which imposes this ban is PIC 4020. This applies to permanent Visa applicants as well. It can get more serious if you previously failed to satisfy the Immigration Department about your identity. The ban in that case may be 10 years.
A re-entry ban applies to you – what now?
If you’re applying for a visa within a re-entry ban period, then you must also apply to the Immigration Department for a waiver of the ban. This is difficult because you must provide proof that compassionate and compelling circumstances exist in your case which justify the waiver. Each and every case is decided on its merits. The Immigration Department is not bound by precedent, which means if they have agreed to apply the waiver in one case, that does not mean that they will necessarily agree to do this in a similar case.
Probably one of the strongest arguments that you can make is if you can show that your entry to Australia is in the interests of an Australian citizen or permanent resident. For example, if you have children living in Australia and are citizens, you may be able to argue that they need to see you.
Another example might be if there are court proceedings on foot in Australia, and an Australian citizen intends to call you as witness. Your presence in court in this situation greatly impacts on an Australian citizen’s rights and interests. This may be a good argument to support an application for a waiver.
If you find yourself in this situation, let us know and I will personally advise you about your prospects of success.