Definitely, maybe: does cancellation under s 116 only result in a temporary exclusion from Australia?

Joel McComber
joel@sentrylaw.com.au
13 January 2020

We’ve previously written about the permanent exclusion that results from cancellation under s 501 of the Act. But what about people cancelled under s 116(1)(e) of the Migration Act? Are they excluded from Australia and, if, so, for how long?

It is commonly stated that cancellation under s 116(1)(e) of the Migration Act only results in a three year exclusion from Australia. However that answer, while easy, is not necessary accurate.

Below is a brief summary of exclusions that may result from a cancellation under s 116(1)(e) of the Migration Act.

The three year temporary visa exclusion from date of cancellation – the easy part

It is a criteria of most temporary visas (e.g. visitor visas, student visas or sponsored work visas) that the applicant is able to satisfy Public Interest Criteria 4013 (PIC4013). Among other things, PIC4013 requires that, if the visa applicant has previously had a visa cancelled under s 116(1)(e) of the Act, their visa application was lodged more than three years after the cancellation decision.

It is important to note that PIC4013 is not a criteria for grant of a permanent visa (e.g. partner visa) or a Special Category (subclass 444 visa).

Three year temporary visa visa exclusion from date of removal – a harder part

The three year exclusion from being granted a temporary visa imposed by PIC4013 is really just the start of things.

Public Interest Criteria 4014 provides if you are removed from Australia more than 28 days after your visa was cancelled, or if you leave Australia as the holder of a bridging visa granted more than 28 days after your visa was cancelled, then you will be ineligible to be granted most temporary visas for three years from the date of your last departure from Australia.

It is important to note that PIC4014 is not a criteria for grant of a permanent visa (e.g. partner visa) or a Special Category (subclass 444 visa).

One year exclusion from eligibility to be granted any temporary or permanent visa – a harder part

If you are removed from Australia, voluntarily or involuntarily, after your visa is cancelled, you will be unable to satisfy Special Return Criteria 5002 (SRC5002) for 12 months after the date of your removal.

SRC5002 is a criteria of most visas (temporary and permanent) that can be applied for outside of Australia.

If you are removed from Australia, you will usually be unable to apply for a visa within 12 months after your removal.

Special Category (subclass 444) Visa applicants must not be ‘behavior concern non-citizens’

While applicants for Special Category Visas do not have to satisfy PIC4013, PIC4014 or SRC5002, they do have to satisfy the decision maker that they are not a ‘behaviour concern non-citizen’. Among other things, a behaviour concern non-citizen includes any person who has been:

  1. sentenced to a single term of imprisonment, or multiple terms of imprisonment, totaling 12 months or more; or

  2. removed or deported from Australia or another country.

That means that, if you are removed from Australia after your visa is cancelled, you will be permanently unable to be granted a Special Category Visa on your arrival into Australia.

Further, even if you were not removed from Australia after the cancellation of your visa (and you are eligible to be granted a Special Category Visa), there is nothing to stop Australian Border Force officers from cancelling your newly granted visa while you are still in immigration clearance at the airport. If this occurs, then you will:

  1. not have the right to apply for review of this decision to the Administrative Appeals Tribunal; and

  2. be removed from Australia at the earliest opportunity.

Even if you are past any exclusion period, you will still be liable for refusal under s 501(1) – the hardest part

Even if you are now past any exclusion period for applying for a visa, it is important to keep in mind that any application for a visa can be refused under s 501(1) of the Migration Act if the applicant does not pass the character test.

The Department is likely to suspect that a person previously cancelled under s 116(1)(e) does not pass the character test on the basis that their past conduct indicates that they are not of good character (apart from any other limb of the character test). They are therefore likely to issue a Notice of Intention to Consider Refusal under s 501(1) and invite the visa applicant to make representations as to:

  1. whether they pass the character test; and, if not,

  2. whether their application should be refused on character grounds.

In order to maximise your chances of not being refused under s 501(1), you should ensure that you do not engage in any criminal conduct during the period after your last departure from Australia (if not also engage in ongoing rehabilitation or treatment for the underlying causes of your past offending).

Conclusion

The main point here is that you should not assume that just because three years have passed since your visa was cancelled under s 116(1)(e) that you will have a straightforward path to obtaining another Australian visa. This is particularly true for New Zealand citizens who do not typically have to make a formal visa application in order to be granted a Special Category Visa on their arrival to Australia.

The other significant point is that you should not take visa cancellation processes under s 116(1)(e) less seriously because they do not automatically result in permanent exclusion from Australia. While not automatic, some people will find that cancellation under s 116(1)(e) effectively precludes them from ever returning to Australia. It’s therefore important to seek review of cancellations under s 116(1)(e) at the Administrative Appeals Tribunal and make sure you put your best foot forward throughout that application.

Whether you are looking for assistance with the visa cancellation process or looking at applying for a visa to return to Australia after being cancelled, it is recommended that you seek out and obtain legal advice regarding your options. Sentry Law practices exclusively in this area and we deal with these types of questions regularly.

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