Think you can’t migrate because you are banned? Well, perhaps you can…

Jennifer khan banned or excluded

 A RE-ENTRY BAN OR EXCLUSION PERIOD

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.

Chime, chime…

Chime chime jennifer Khan
I like to treat staff at the Department of Immigration and Border Protection(DIBP) with a lot of respect. I have spoken with many case officers over the phone and most of them are incredibly diligent, excellent problem solvers with an impressive knowledge of immigration law and policy. There is a lot of negativity in the media about the DIBP and/or the associated Minister. However at the end of the day I am primarily concerned with my client and how the case officer perceives them.

Nevertheless it can be a battle to try and do the best thing for my client while up against never-ending legislative changes including regular fee hikes. Once upon a time on a Christmas day I was absolutely determined to work through the public holidays to make sure my client’s application landed at DIBP in the Queensland office before New Years’ day. I felt like Cinderella rushing out before the clock chimes midnight. For should the application land on the door after midnight of the 31st of December the visa application fee would rise a shocking additional $2000 +. It would be just wrong to delay that application causing my client to pay more. I had to squeeze in an entire month worth of work into about two weeks. But, I succeeded!

To make the almost-fairy story work I had to call DIBP. There I was on Christmas Eve, charged up, on fire, ready to make this work and be a hero! I made it through to DIBP over the phone. I discussed the case then went on to empathise how the fee hike must be placing a lot of pressure on the staff as there would be many trying to lodge their applications before the 31st December.

“It’s awful,” said the lethargic sounding staff member, “It’s just awful how the Department raise these fees, prevent people from coming into the country. And the refugees being sent to detention is criminal in my opinion. I have no respect for any of it.”

She sounded forlorn. I become worried to the point that if I didn’t attempt to make this poor soul feel a little better then her Christmas would be miserable. There I was on Christmas Eve cheering up a DIBP staff member over the phone. It was surreal. Just part of the ‘do it before the clock strikes midnight’ atmosphere perhaps. Typically I spend a good deal of time positively encouraging my clients. It is necessary sometimes because of  some harsh restrictions immigration law has placed on them and their loved ones – many times the stories are nothing short of tragic. But the coin had flipped and I was encouraging someone from DIBP.

This misery is caused by red tape, ‘excessive bureaucracy or adherence to official rules and formalities’ that no one can point their finger at just one individual for blame. Those who need to obtain visas have to deal with it as best we can. There are countless ‘do it before the clock strikes midnight’ moments when dealing with immigration law. Sometimes this means shuffling around clients to make sure no client suffers adverse consequences. I’ll list 12 bad consequences for you – one for every chime of the clock at midnight!

  1. visa application charge increases
  2. missing out on a chance to appeal a refusal decision to the Administrative Appeals Tribunal
  3. fail a deadline and subsequently having the dreaded section 48 ban on applying for visas! (most of them)
  4. respond to an adverse claim from an anonymous party out to destroy our chance for visa grant
  5. sometimes you will have until the clock strikes midnight on the 28th day, sometimes the 28th day + 7 days depending on certain factors
  6. get the application in before midnight when a new legislation will come into effect suddenly making your application a whole lot more difficult to have granted
  7. lodge your application before midnight lest the visa subclass you are hoping for is ‘capped and queued’ and you are left for years wondering if you may ever be able to apply for it again
  8. submit your IELTS result certificates now, you can’t use them after midnight of their third year of existence
  9. Police checks? They only survive one year.
  10. Standard Business Sponsorships? 3 years but sometimes only 18 months.
  11. Lodge you visa application before your current one expires – you have until midnight of the last day
  12. You have your visa, but make sure you enter Australia before midnight of the initial entry date..

Persuasion. The most effortful labor there is.

I often send for entire Department of Immigration and Border Protection files where a person has, after attempting a visa application themselves, had their application refused.  I also need to do this even when a person was represented by a Registered Migration Agent/Immigration lawyer so that I can see what went wrong with the original application.  Having the entire file in front of you means you can see how your case officer has structured their reasoning about your case  in their decision making process.  If you ever had a visa refused, in every instance you would want to know exactly why because a visa application is always about something of primary importance.

One day I saw in a Departmental file the work of a highly paid Immigration Lawyer.  I was dumbstruck. I simply couldn’t believe what I was seeing.  A page and a half cover letter representing the client.  And more than half of this was just ‘copy and paste’ relevant legislation.  The submission wasn’t wrong – it addressed all the mandatory criteria for grant if visa. But that was it. Where was the persuasive argument?? Where was compelling  the case officer to understand that they were dealing with honest applicants?? The visa was refused and all the clients money down the drain.

You have to be persuasive in a visa application. Absolutely. Here is a quote I like, I’ll then link it to the visa application process.

“One might even say that moving minds [persuading others] – our own as well as others- is among the most effortful labor there is” (Popova n.d.)

ABSOLUTELY!! How on earth can we expect a case officer, delegated to process thousands upon thousands of visa applications, to be convinced to grant a visa based on a cover letter that merely ticks off a basic checklist of standard visa criteria? No effortful labor could I find in this letter. No persuasive argument. None.  In many cases a case officer will grant a visa with their decision based upon such an application.  However more often the visa will be refused.  Now, having seen the type of policy case officers must give regard to when making a decision, I think that is fair enough.

In my opinion, any chance of any visa application being granted hinges upon whether or not a case officer finds the applicant to be genuine. In my further opinion it is dishonest for a representive attempt to  show your case officer that you are genuine by writing a brief cover letter – especially if you come from a country where the Department’s ‘risk-tiering’ system places you in a position where your application must face a much higher level of scrutiny.

I couldn’t look in the mirror if I ever were to send off such an application.   I see that I need to present to your case officer your full story. To construct a letter that carefully convinces and persuades your case officer to say, ‘yes’, to  approve your visa.  I need to work my way through your life story and future plans picking out even the teeniest, tinyest detail (as far as you are comfortable) and match it up with the appropriate visa criteria. Then I’ll wring out as tightly as possible everything from your life story and future plans that could add to persuading  your case officer that you are in fact genuine.

Each application I do requires the most effortful labor I know in my working life. I make no apologies, I won’t be completing your visa application in a hurry. It’s not possible, in my opinion, to perfect the type of persuasion necessary for your particular story in a short amount of time.  For me, having honesty and maintaining integrety as your representative is more important than a fast result. Underpinning this is my commitment to ensure I do all I can, whatever it takes, however long it takes, relentlessly advocating, to get your visa granted.