Cancelled visa, overstaying or document fraud triggering a 3-year bar — can it be waived? Can you still apply for PR? PIC 4013, 4014 and 4020 explained

Author

Jason ZHANG

• MARA-registered migration agent, CTO of the Newstarsec Group, and gold-medal study-abroad and migration consultant at the Melbourne branch; pen name Mitu Weiyuan.

• Brings extensive experience in migration and study-abroad casework, enjoys resolving all kinds of visa issues through migration law, and specialises in handling difficult, complex cases. The author of hundreds of in-depth Newstarsec study-abroad and migration articles, helping applicants understand not just the what, but the why.

Introduction

If you know a little about visas, you may be aware that migration law hassomething called a “3-year bar”, also known as a “3 year re-entry ban” or “3 year exclusion period”, which means the applicantcannot apply for an Australian visa for 3 years.

The reason for such a harsh provision is thatthe applicant has made a serious, hard-to-forgive mistake in relation to their visa, and thereforea penalty must be imposed. This article explains the issue in detail.

What are the Public Interest Criteria (PIC)?

First, it helps to understand that

before a visa can be granted, it must satisfy the so-calledPublic Interest Criteria. The specific PIC requirements are defined in detail inSchedule 4 of the Migration Regulations.

For example:

1. An applicant mustmeet the good-character requirement and have no criminal record — this rule comes from thePIC 4001 provision.

2. Thehealth examination requirement, on the other hand, is defined in thePIC 4005 or 4007 provisions. Imagine if the Department of Home Affairs let in someone with a criminal record, or with a health condition that could place a burden on Australia’s health system — that could affect Australia’s “public interest”.

So committingdifferent serious mistakes will breachdifferent PIC provisions, which in turn trigger the 3-year bar and other penalties.

PIC 4013 — penalises those whosevisa is cancelled after wrongdoing

PIC 4014 – penalisesoverstaying in Australia by more than 28 days

PIC 4020 — penalisesproviding fraudulent documents

PIC 4013

The 3-year bar for a cancelled visa

Put simply,PIC 4013 is designed to penalise those whosevisa has been cancelled. Under the law, once a visa is cancelled, you must wait a full 3 years before you can reapply for certain Australian visas; otherwise the application will simply be refused for failing to meet PIC 4013.

Common reasons a visa is cancelled

There are many reasons a visa can be cancelled, but the two most common situations are as follows:

1. Breaching visa conditions, for example:

a)an international student working beyond the permitted hours
b) a visitor-visa holder whose phone is checked at the border and is found to be working illegally
c)a Subclass 500 holder whose CoE is cancelled by the institution and who fails to obtain a new CoE in time, and so on

The above situations mainly breach the migration law provisionSection 116(b), shown below:

2. Visa document fraud being discovered. For example:

a) being caught by the Department’s facial-recognition technology for having someone else sit an IELTS test
b)being reported, after obtaining PR, for having falsified work experience
c) when sponsoring a current partner for migration, the Department finding that the relationship overlaps in time with a former partner and inferring that the earlierrelationship was fabricated, and so on

The above situations breach the migration law provisionSection 103, shown below:

In addition,during the pandemic, the Department of Home Affairs cancelled a number of people’s visas under s116(1)(e),on the grounds that they posed “a threat to the health of Australians” (including world No.1 tennis player Novak Djokovic).

PIC 4013canbe waived, but it is difficult

PIC 4013 has a back door: if there isa compelling reason affecting the interests of Australia or Australians, then a visa applied for within the 3 years may still be granted — though it is usually quite difficult. The legislation reads as follows:

Waiver example:
Xiaoming is a PR holder. After Xiaoming’s mother was reported for working in Australia on a visitor visa, her visa was cancelled by the Department and she departed Australia. A year later,Xiaoming became seriously ill, with no relatives or anyone in Australia to care for him. At this point, even though it had been less than 3 years since her visa was cancelled,Xiaoming’s mother could still potentially be granted a visitor visa.

PIC 4014

Overstaying by more than 28 days triggers a 3-year bar

PIC 4014 is used to penalisepeople who overstay in Australia by more than 28 days.Under the law, once a persondeparts as an unlawful non-citizen, or departs on a Bridging C, D or E visa, they face the same penalty as under PIC 4013 — a 3-year ban on applying for an Australian visa.

Unlessthe unlawful statuslasts no more than 28 days before departure, orthe bridging visa held on departure was granted within 28 days of becoming unlawful.

PIC 4014canbe waived — and this is the most commonly successful waiver

Like PIC 4013, PIC 4014 can also potentially be waived. The PIC 4014 legislation reads as follows:

Waiver example:

Forgetting the expiry date of a visa (such as a Subclass 500) and accidentally overstaying by more than 28 days, thereby triggering the PIC 4014 3-year bar, is something I come across very often in my day-to-day consultations.

In these cases,it is relatively easier to explain, and the chance of obtaining a waiver is higher. Both I and our firm have many success stories.If you need help, you are welcome to contact us to handle your next visa step.

PIC 4013and PIC 4014

do not affect

all PRapplications, ora small number of temporaryvisa applications

It is worth noting thatPIC 4013 and 4014 do not affect every PR application. This means that even if your visa was once cancelled, or you once stayed unlawfully for more than 28 days, as long as you meet the requirements for a PR application, youcandepart and apply immediately without having to wait the full 3 years.

Here is an extreme example

Suppose Xiaoming’s visa was cancelled in Australia for not paying his tuition fees, and he then became unlawful. While unlawful, Xiaoming scored 79 in all four PTE bands, passed the CCL test and received a Subclass 189 invitation. In that case,Xiaoming canafter departinglodge his Subclass 189 application immediately.

PIC 4013 and 4014 only affect some temporary visas,such asvisitor visas, student visas, working holiday visas and employer-sponsored work visas, and so on. Take the Subclass 482 employer-sponsored work visa as an example: it must satisfy PIC 4013 or 4014, whereas the Subclass 485 visa has no provision requiring PIC 4013 or 4014, as shown below

Here is a summary of the common visa subclasses:

Temporary visas that ARE affected:600/601, 500/590, 417/462, 482, 407, 408, and so on

Temporary visas that are NOT affected:485/476, 491/494, 300/309/820, and so on.

So using a Subclass 485 to get back on track is a workable option. As that is not the focus of this article, I won’t go into it further here.

PIC 4020

Visa document fraud triggers a 3-year bar

PIC 4020 was created in order topenalise people who provide fraudulent documents in a visa application.

For example, if work experience is found to have beenfalsified when lodging a skilled migration application, then after the refusal the applicant cannot lodge any visa application (including PR!) for 3 years. What’s more,the applicant’s partner faces the same penalty — even if the partner provided no fraudulent documents at all! The legislation reads as follows:

New and old visas are penalised together

In addition, under 4020(1)(b) shown above, if a persondoes not commit fraud in their next visa application, but did commit fraud in a visa held in the previous 12 months (and merely got lucky at the time, was not caught, and the visa was granted), then when lodging this fraud-free visa application, if it is discovered that the earlier visa involved fraud, the new application will likewise be refused under 4020 (with a 3-year bar following the refusal).

Very hard to waive successfully

Like 4013 and 4014, if Australia’s interests are affected, a waiver is in theory possible.However, compared with 4013 and 400114, 4020 ismore serious in nature, and the chance of a successful waiver is extremely low.

If you receive an s57 letter alleging document fraud, usually withdraw

Therefore, if youlodge a visa and then receive an s57 email from the Department asking you to explain fraudulent documents, then unless you are completely confident, the usual approach is to withdraw the visa application, so as to avoid being barred from applying for any visa for 3 years.

PIC 4013, PIC 4014 and PIC 4020 can apply at the same time

If a person’s visa is cancelled because of fraud, the cancellation happens while they are onshore, and they then stay unlawfully in Australia for more than 28 days, that person will hit all three PICs at once.

After 3 years, can a new visa application be approved?

When you apply for a visa after 3 years, you are in theory no longer subject to these PIC restrictions.

However, this does not mean the new visa will be approved. In fact, because of the earlierserious wrongdoing and the resulting adverse record,, when applying for visas with a GTE requirement (such as a visitor visa or student visa),, the application is still very likely to be refused by the case officer on GTE grounds (a so-called migration intention).

Summary

There are many paths to PR. My strong advice is to work towards itwithin a lawful framework, and never commit fraud. And, while you are striving for PR,keep a close eye on your visa expiry dates and strictly comply with your visa conditions, so that you don’t trigger a 3-year bar that suddenly brings your migration journey to a halt.

That brings us to the end of this article. If you are interested in migration law, you are welcome to browse my earlier migration-law series.

If you have a visa issue and need help

you can contact me

MARA-registered migration agent (MARN 1805429)

Jason’s Migration Law Column

[The validity period of bridging visas]

When does a bridging visa cease to be in effect?

[Does a Bridging B automatically become a Bridging A once it “expires”? ]

Could you accidentally become an “unlawful non-citizen”?

[After lodging onshore, can you wait for the grant back home?]

Can you return home to await the grant after lodging onshore? Migration law clause xxx.411 explained!

[Refused onshore? What can you do?]

Can you still apply to migrate? Section 48 explained, plus AAT appeals and ways to rescue a refused application!

[Does a bridging visa take effect immediately after lodgement?]

Does a bridging visa take effect immediately after lodgement? The priority order of bridging visas explained!

Migration News Group

2023

Step 1: Press and hold to add our client service contact

Step 2: After adding, please

Study abroad · Migration · Visas — we are the professionals

Attention!Please verify thegenuineNewstarsec consultant!

Study-abroad and migration enquiries — client service by location

Sydney

Melbourne

Canberra

Brisbane

Adelaide

Hobart

Beijing

Guangzhou

Follow the Newstarsec WeChat Official Account

Reply in the official account with any of the numbers below or any keyword (not in the comments at the bottom of the article) to get the most timely and professional migration news!Reply [A] to view the directory (covering all topics)!

Reply: 0000 → view the 16 November policy update (491 + skilled migration points)

Cancelled visa, overstaying or document fraud triggering a 3-year bar — can it be waived? Can you still apply for PR? PIC 4013, 4014 and 4020 explained

Quick Links

Popular Services

Our Offices

Follow Us