PIC 4013 and PIC 4014 - When and How Does the 3-Year Bar Apply?

Most temporary visas (but not provisional visas) will contain the legal criteria that public interest criteria 4013 (PIC 4013) and public interest criteria 4014 (PIC 4014). They are often referred to as re-entry bans and/or exclusion periods. There are certain events that will trigger these risk factors.

PIC 4013


PIC 4013 criterion imposes a 3-year exclusion period if a person has previously had their visa cancelled. The exclusion period commences from the time the visa cancellation occurs. However, not all cancellation powers are affected by PIC 4013. For example, if you cancel your own temporary visa under section 116 of the Migration Act, it will not attract PIC 4013. The prescribed ground for self-cancellation is found in regulation 2.43(1)(g):

“in the case of a temporary visa held by a person other than a visa holder mentioned in paragraph (h) – that the visa holder asks the Minister, in writing, to cancel the visa”

What cancellation powers & grounds attract PIC 4013?

The following cancellation powers and grounds attract PIC 4013:

  • Section 109: Providing incorrect information and/or bogus documents

  • Section 116(1)(e): Risk to community public, health, safety or good order

  • Section 116(1)(fa)(i): Not a genuine student

  • Regulation 2.43(1)(ea): Not a genuine visitor (subclass 601)

  • Regulation 2.43(1)(i): Non-genuine subclass 600 visa (business visitor stream)

  • Regulation 2.43(1)(ia): Non-genuine temporary work & activity visa holders (eg. subclasses 400, 407, 408, 488, etc)

  • Regulation 2.43 (1)(j): Non-genuine subclass 600 visa holder

  • Regulation 2.43 (1)(ja): Non-genuine subclass 600 visa (frequent traveller stream)

  • Regulation 2.43 (1)(k): Non-genuine subclass 976 (old ETA)

  • Regulation 2.43 (1)(ka): Non-genuine subclass 651 visa holder

  • Regulation 2.43(1)(kb): Non-genuine subclass 457 holders granted before 18 March 2018

  • Regulation 2.43(1)(kc): Non-genuine subclass 482 visa holders

  • Regulation 2.43(1)(o): Visa obtained as a result of fraudulent conduct

  • Regulation 2.43(1)(oa): Temporary visa holder convicted of State or Commonwealth Crime (does not apply to subclass 050, 051, 444)

  • Regulation 2.43(1)(ob): Holder subject to Interpol notice that holder committed crime outside Australia and is likely to commit a similar offence (does not apply to subclass 050, 051, 444)

  • Section 116(1AA): Not satisfied as to identity

  • Section 116(1AB): Incorrect information outside visa application

  • Section 133A: Minister personally cancels on section 109 grounds

  • Section 133C: Minister personally cancels on section 116 grounds

 

PIC 4014

This criterion similarly imposes a 3-year re-entry ban on the person returning to Australia. The 3-year ban commences from the date the person departs Australia. If this person does not depart Australia, then PIC 4014 is not enlivened. It is enlivened if the departure is in any of the following circumstances:

  • As an unlawful non-citizen, unless the last substantive visa expires less than 28 days before the date of departure;

  • As a holder of either bridging visa C, D, or E, unless that bridging visa was granted in either of the following circumstances:

    • Within 28 days of the last substantive visa expiring; or

    • Whilst holding another bridging visa and that bridging visa was granted within 28 days of the last substantive visa expiring.

 

Can Two Different Exclusion Periods Apply Concurrently?

It’s common to be affected by PIC 4013 and 4014 at the same time. For example, if your visa was cancelled under section 109 of the Migration Act 1958 for providing false and misleading information, relevantly PIC 4013 is a criterion that needs to be addressed.

At the cancellation of your visa, you will not hold a visa. If you depart Australia 29 days after your visa is cancelled, then PIC 4014 is triggered and requires addressing should you wish to return to Australia.

If both PIC 4013 and 4014 apply, then the respective 3-year bans are calculated separately.

 

Waiver of exclusion periods under PIC 4013 & 4014


If you are affected by PIC 4013 and/or PIC 4014, you may seek a waiver. The Department of Immigration has the discretion to grant the visa if they are satisfied that either “compelling circumstances affecting the interest of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanently resided or an eligible New Zealand citizen”.

If you are affected by both PIC 4013 and 4014, then you will need to seek 2 waivers.

 

How Can Agape Henry Crux Help

“Compelling” & “compassionate” are defined by the Courts in the context of seeking a waiver affected by public interest criteria. It is therefore imperative to apply case laws to your legal submission when seeking a waiver.

At Agape Henry Crux, our Accredited Specialist Immigration Lawyers and our team of immigration lawyers and migration agents are well trained to handle highly complex matters.  You can book one of our lawyers or agents to seek professional advice by calling 02-72002700 or email us to book in a time at info@ahclawyers.com.

We speak fluent English, Korean, Burmese, Japanese, Mandarin, Cantonese, Indonesian, and Malay. If this isn’t your language, we can also help you arrange an interpreter.

This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact our office.

Jason LingPIC 4014, PIC 4013, PIC 4014 criterion, public interest criteria, 3 year ban