Think you can’t migrate because you are banned? Well, perhaps you can…
Have you been told this applies to you? Then either you overstayed a visa or had a visa cancelled. Maybe this happened as a result of your overlooking a visa condition, or leaving the responsibility of your visa in the hands of an employer who didn’t understand the immigration process themselves. In regards to the last reason I have spoken with quite a few visa holders who have relied on their employers to arrange their visa applications and the employer got it wrong. The sad story here is that the adverse consequences fall harshly on the visa holders more so than on the employers. Now and then it is my job to move forward with this person and find the correct immigration pathway. The situations needs to be carefully discussed with DIBP and where possible a new visa applied for. Sometimes it is not immediately possible, sometimes never possible, sometimes because of the re-entry bans and exclusion periods.
I will list the types of bans and exclusion periods here:
Ban period = FOREVER*
This applies if visas are cancelled in relation to substantial criminal records or if you were deported due to criminal or security reasons. However if you are subject to this ban for one of the above reasons and are in Australia you can still apply for a Protection Visa if eligible.
Ban period = ONE YEAR*
This applies if you were ‘removed’ or deported from Australia or are a dependant of a ‘removed’ or deported person. Refugee and Humanitarian visas are your only option within the 1 year ban.
Ban period = THREE YEARS*
If you have a three year ban period then you may have 1) had your visa cancelled or you 2) departed Australia when you held a Bridging Visa C, D or E and it was more than 28 days since you held a substantive visa. You still have a chance of applying for many types of visas which is the good news, the bad news being they can only be permanent visas.
BUT
There is such a thing as applying for a waiver of an exclusion period if you can show compelling circumstances affecting the interests of Australia or compelling and compassionate circumstances affecting an Australian citizen, permanent resident or ENZ citizen. An example is you are the father of a child with an Australian permanent resident mother. It is not easy to obtain a waiver however it is a frequently explored option as it enables a person to stay in Australia despite these re-entry bans and exclusion periods. If you don’t have such circumstances then you will unfortunately need to fulfil the ban period.
*Disclaimer: you can see the complexity of the rules surrounding the exclusion periods and re-entry bans. Please do not rely on this information in determining your way forward as the rules can change anytime – please seek advice from a Registered Migration Agent or Lawyer.
