# 3 year exclusion period!



## naveenshakil (Aug 26, 2013)

Hi,
I went to Australia in 2010 under working holiday to work as an architect for a company. After 6 months, they sponsored me under 442, saying it could lead to a 457 employed visa. However, I decided to leave the company in Nov 2011 as they were making cuts, and decided to go onto my partner's defacto visa. I lodged the application for defacto visa on the 1st of Feb (having been in contact with immigration department throughout this) and on the 22nd of Feb, I recieved an email saying that my previous visa was cancelled. In the letter it stated I had not breached any visa conditions, however it was being cancelled as I was no longer with the company. However, it did not state anything about a 3 year exclusion period. And it all made sense to me at the time.
In May 2013, i decided to come visit my father, he was very ill and since i was still on bridging visa e, had to withdraw my application for the fear of unforeseen circumstances if my father didnt get well. I had on numerous occasions, throughout the year and half of a bridging visa, been in constant contact with the department, and 4 days before leaving, had gone to let them know that I have a new british passport to link my application to. When I heard news of my father, i went to inform them that I had to leave immediately. I withdrew the application in person, and even then was not informed that since i would be leaving on a BVE i would not be able to return.
Going through immigrations on the way out, a gentleman informs me i may have a 3 year exclusion period, based on my 442 getting cancelled. I was mortified. I was really upset. I had been living there for 3 years, and was planning on returning. 
And NO ONE throughout all the correspondence informed me of this possible 3 year exclusion!! 
In this time, i have managed to put together my folio to study (itll have to be as an international student) which in turn will help me get a genera skilled visa as an architect, specially as i have worked there on some major projects. I also have a Bachelor of architecture, and everything that I have done to my knowledge has been genuine with no breach of any conditions or compliance.
It made perfect sense that the 442 would be cancelled since i was no longer working with them and had applied for spouse.
I recieved an email from my Case officer saying my application had been withdrawn, and my bridging visa had ceased, and to contact nearest embassy for future travel. However, again, it does not state anything about a 3 year exclusion period. Had I known about this, I would have not left without applying for a BVB.
I contacted the local embassy, and when they pulled me up on the system, the gentleman over the phone said that there is nothing on the system about a 3 year ban, and the best thing to do is get in touch with the DIAC in Australia and my previous case officer.
My intention is to study and then apply for GSM however, i am very fearful that I may not be able to do this. 
Please help!


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## CollegeGirl (Nov 10, 2012)

Ugh, you have really been through it! Unfortunately at this point you are REALLY going to need the help of a migration agent ASAP. You need someone who very much knows the ropes, better than any of us do.

This is why it's so frustrating that there are no consequences when DIAC omits important information or doesn't give correct advice. That's why we always advise people here to rely on MARA-registered migration agents rather than DIAC themselves for anything remotely complex.

Hindsight is 20/20, of course, but the thing that started all this in motion was you quitting your job. You should have stayed with your job while the partner visa application was processed. Then, when your partner visa was granted, you could have left your job and you would have had full travel rights the whole time.

Some people think if they are on a skilled visa and apply for a partner visa, they can quit their job and a Bridging Visa A will kick in (since that's what happens when the visa you're currently on _expires_ while you're waiting for your Partner Visa.) But quitting your job (or if you're on a student visa, no longer going to school) breaches your visa terms, gets your visa _cancelled_ and you're immediately illegal. The Bridging Visa A is designed to keep you legal, give you work rights and allow you to apply for the BVB while you're going from one substantive visa to another. But if you breach the terms of your first visa, you no longer have that first substantive visa, and the Bridging Visa A therefore no longer exists, either.

When you quit your job, that cancelled your visa (cancelling is very different from expiring - in this case it meant you breached your visa conditions and you were no longer legally in the country). They placed you on a BVE, but the BVE does not come with ANY travel rights, NOR can you generally apply for a BVB from a BVE. Usually only people on BVAs can apply for BVBs to travel out of the country for a short period of time.

Unfortunately since you breached the terms of your original visa, even though you did it unknowingly, you're going to have a very hard time getting back into the country, IMO. Like I said - time to enlist a migration agent.

Mark Northam who hangs out around this forum is particularly good.


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## naveenshakil (Aug 26, 2013)

Hi Thanks for replying!

This is very frustrating news for me. I think its completely unfair that a)they did not tell me of the conditions when my visa was cancelled and i left the job because they were making redundancies, cutting hours and pays and did not want to be one of those people! 
An agent advised me to lodge the partner application before my visa got cancelled which I did, and when i lodged it in person the gentleman did not inform me that if I left on a BVE i would not be able to come back. Neither did it state that on the BVE application form! I then applied for my work restrictions to be lifted which was granted.
And throughout correspondence, I was not notified of this circumstance. The only thing I was made aware of was that I could not leave and re-enter while holding BVE, and to be honest, i did not anticipate that I would have to leave for anywhere either. This unfortunate family circumstance was out of my control.
When the immigrations guy at the airport told me about this, his exact words were "there MAY be an exclusion period" to which I got really upset and asked him to tell if there is or isn't i'm sure it cannot in the grey area right? And when I asked him why I hadnt been told this when I was at the department withdrawing my application, he shrugged his shoulders and replied, "i'm just doing MY job". <-- i was already in tears about my family and this news made it all so much worse. Here I was thinking Ill make sure my family is ok and then come back!
I have spoken to a lawyer and also a lawyer in Melbourne, and they both said this was something I should have been informed about on atleast more than one occasion. But since there is nothing in writing, I need to contact the DIAC in Australia, which I have. Once I receive offical documents stating whether or not there is an exlcusion period, and why it was put there, we can take steps forward.
I dont know what else I can do. The next question is als about funds. I have saved up a bit towards my education, however, if it all goes towards a lawyer or agent, i can forget about studying. 
My next available option is a GSM, but I wanted to further study in Australia to GET my GSM. I did do the online points test, and I gain 75 points, however, I cannot be a registered architect yet, not till i further my studies and I dont think that will go in my favour. My resume is very solid, with massive projects around Australia which I am very proud to be a part of and its a shame I cannot continue my life there. There has got to be a way!


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## CollegeGirl (Nov 10, 2012)

You said:


> when i lodged it in person the gentleman did not inform me that if I left on a BVE i would not be able to come back. Neither did it state that on the BVE application form!


But then you said:



> The only thing I was made aware of was that I could not leave and re-enter while holding BVE


That's a little confusing, as leaving and re-entering and leaving and coming back are the same thing...

Anyway, there's a lot of things that should have happened differently, but that's neither here nor there at this point. Your only option now is damage control - and that's going to take the help of a professional.

An agent's fees are not going to be anywhere near the fees involved in international study. Reputable agents will generally provide an initial consultation for very low cost (a few hundred dollars or less). From what I've read here, international student tuition/fees/visa expenses often range into the tens of thousands of dollars. I'd make sure you can afford that path before you look into a student visa.


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## naveenshakil (Aug 26, 2013)

sorry, i should make that more clear.

I didn't know if i left on BVE that i would have a 3 year ban.
I thought if i left on BVE, it would cease and I could then apply for a whole new visa to come back, namely the student visa.
Yes you're right I have to look into that path. Do you know much about skill migration 189? I have read that under that, I am able to study as well. I may not be a registered architect, but have Bachelors in Arch from UK, and have worked in Australia for 1.5 yrs in the company, and outside Australia for 1 year as well. Since Im a british citizen i get max points for english, and max points for age.
In total I get 75 points I believe. I wonder if that is good enough to apply for 189 as it is a permanent visa, and I have been reading the forums which state that the 3 year exlcusion period is for temporary visas and not permanent visas.
Perhaps this might be the best option?
In any case, your advice is 100% right, I need to engage an agent/lawyer as soon as DIAC gets back to me.


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## CollegeGirl (Nov 10, 2012)

I don't know much about skilled visas, sorry.  Hopefully someone else here will have an answer for you!


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## naveenshakil (Aug 26, 2013)

Thank you so much for helping me this far college girl. I feel at a complete loss and standstill at the moment!


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## CollegeGirl (Nov 10, 2012)

I'm sorry.  I wish I knew more so I could help you further. But that's what a forum is for... crowd-sourcing information.


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## naveenshakil (Aug 26, 2013)

ok so it doesnt look good applying as an architect 189 as I am not a registered architect, nor a MAarch.

Does anyone have any success stories for getting the 3 yr exclusion period waived? I know its damn impossible but its fast becoming my only hope


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## Alnaibii (Aug 1, 2013)

Hi naveenshakil,
About 189, you can apply with BArch, you do not need to be a registered architect.
you need min. 60 points to apply, but you are not going to get maximum points for English just for being British. You need to sit IELTS and get at least 8 for 20 points, which I am sure you are able to.
I am an architect as well, going thru the 189/190 process, so if you have any more questions about this, and I could help, I will be glad to.

Cheers


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## MarkNortham (Dec 19, 2012)

Hi Naveen & All -

Naveen's situation is very interesting - we're corresponding via email about it in a more detailed way, but since it's being discussed here as well I thought I'd comment a bit for the benefit of those reading here publicly.

When a person's visa is cancelled, that cancellation also cancels any bridging visa a person might have associated with a pending visa application, so that person is instantly unlawful - ie, in Australia without a visa, assuming they are in Australia. The rules regarding cancellation are very complex, and the rules about exclusion periods and if/how they are imposed are even more complex. The specific part of the Migration Act that the visa was cancelled under is one factor. Another factor is what visa you held when you departed Australia. There's one part of the regulations that says if you departed Australia holding a Bridging Visa C, D or E, you have a 3-year exclusion period UNLESS you meet one of the following:

*(a) the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect or an entry permit held by the person expired, as the case requires; or
(b) a bridging visa held by the person at the time of departure was granted:
(i) within 28 days after a substantive visa held by the person ceased to be in effect or an entry permit held by the person expired, as the case requires; or
(ii) while the person held another bridging visa granted:
(A) while the person held a substantive visa; or
(B) within 28 days after a substantive visa held by the person ceased to be in effect or an entry permit held by the person expired, as the case may be.*

Reading through this kind of dense logic is what it takes to decipher the migration regulations in some cases to determine exactly where you stand. It's why for your regular readers here on the forum, when someone wants a very simple answer like "do I qualify", it's just impossible to responsibly and authoritatively answer a question like this when there are pages and pages of legislation like the above that determine, sometimes based on the tiniest details and timing of events, whether a regulation applies or not.

Hope this helps -

Best,

Mark Northam


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## naveenshakil (Aug 26, 2013)

oh my god. oh my god. i think i am in serious trouble here guys.
I just went through all my paper work all over again for the 10 millionth time, taking into account what mark has said. 
When I lodged the application, even though i was doing it before my visa was cancelled, the gentleman said he put me on a BVA
considering the 442 was cancelled..that means the BVA was cancelled.
I thought i was a bridging visa this entire time! i then applied for a bridging visa with a change of conditions, with persmission to work. me and my partner were going through financial difficulty as he was the only one supporting as because i couldnt work.
I then have a document that states I have been granted a BVE dated 12th Sept 2012.
In fine print it states, Naveen is the holder of an associated BVE while she is awaiting decision on her partner visa.
It also states, considering her cooperation with the department on every matter, I am certain she will not breach any visa conditions.

I AM SO CONFUSED. was I illegal till 12th sept 2012 as my BVA would have been cancelled with the 442??
OH MY GOD i cannot believe that this happened.


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## MarkNortham (Dec 19, 2012)

Hi Naveen -

Based on what you've said, yes, you were very likely unlawful between the cancellation date (which wipes out the 442 and the underlying BV-A) and the date which you were granted a BV-E. It's a common area of confusion in Australian migration law, so don't feel bad - the system is complex and sometimes (as you found out) immigration dept folks don't do a great job of explaining all the details of things...

Sorry I don't have better news! 

Best,

Mark Northam


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## naveenshakil (Aug 26, 2013)

i'm sorry too. i really hope DIAC gets back to me soon so we can retrace all the steps because without that information, we'll be in the dark!


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## naveenshakil (Aug 26, 2013)

Hi Alnaibii,
i just sent you a private message asking for some more help if you don't mind.
I also have a very stupid question (im always full of them) if i applied for 189 as an architect, and IF i qualify and IF i get it, would i be able to study graphic design for example? i have always wanted to, specially since i started working on a lot of competitions for my previous company.
what happens if, as a result of the studies, i am more inclines towards graphics, but i got my skilled PR based on being an architect, would i get in trouble for working as a graphic designer?


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## CollegeGirl (Nov 10, 2012)

Super glad Mark is helping you, Naveen. What he said (and what you figured out) is exactly what I thought had happened -- quitting your job did breach your visa conditions, which cancelled that visa and the BV-A attached. Which means that your exclusion period was most likely given correctly, and will not be easy to get lifted.

Fortunately you have Mark on your side, though - if anyone can figure something out, it's Mark!


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## naveenshakil (Aug 26, 2013)

I know i feel some hope with someone as experienced as him helping me out.
I still havent recieved anything in writing or as an official correspondence and its been 4 months since i left. i find that worrying. i also find it worrying that when i called the local embassy, and my previous CO for partner, they both said from what we can access we are unable to tell you if there is or isnt.


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## naveenshakil (Aug 26, 2013)

right guys, this next bit of information is sending my head spinning more.
Cancellations unit got back to me stating that yes generally exlusion periods are imposed. But depends on your circumstances and application for the future visa, and upon lodgement, you'll know more.
I then called DFAT in Melbourne, to be directed to DIAC in melbourne, to be directed to the STUDENT visa centre (as i wanted to know about temporary visas e.g. student) and she was the only one who listened to the entire story and then looked into my file with her superior. AGAIN, though, was unable to tell me in concrete about the exclusion period, and suggested i should just "take a chance" with a cover letter explaining everythng.
what does that mean? why am i not given my own information, particularly concrete notice of such paramount importance?
and i do not want to just "take a chance" on applying for a visa, particularly if i DO have a 3 yr ban. 
this is really really upsetting.


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## chicken999 (May 2, 2013)

Why don't u ask for a copy of ur file under freedom of information acr


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## naveenshakil (Aug 26, 2013)

how would i go out about doing that? 
is there a form for this?


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## MarkNortham (Dec 19, 2012)

Form 424a is the form for a Freedom of Information request - that may help unravel the situation a bit -

Best,

Mark Northam


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## naveenshakil (Aug 26, 2013)

Alnaibii said:


> Hi naveenshakil,
> About 189, you can apply with BArch, you do not need to be a registered architect.
> you need min. 60 points to apply, but you are not going to get maximum points for English just for being British. You need to sit IELTS and get at least 8 for 20 points, which I am sure you are able to.
> I am an architect as well, going thru the 189/190 process, so if you have any more questions about this, and I could help, I will be glad to.
> ...


Hi Alnaibii,
Would you be able to help me a bit?
I have a ton of questions!!!! 
My bachelors is from a recognised institution from uk, however, its 3 years. would they deem that as equivalent to aust standards? or would they deduct years from my 2.5 work experience to make up for it?
also, the AACA assesses overseas qualifications, but it says they dont assess work experience, how would i get my work skills assessed?
did you send/attach examples of your work?
how long did they take to send your assessment results back.
And just to make sure again, we DO NOT have to be registered?
thank you for any help you can give!!


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## Alnaibii (Aug 1, 2013)

Naveen, AACA asks for your diploma and coursework, and they assess that your studies are equivalent to an AU Architecture School. DIAC will check your work experience after you apply.
Have you read and completed Form M on AACA site? There is a separate section for registration, and you only fill it in if you are registered. 

I've sent my file about a month ago, I don't have a response as yet.

Cheers


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## naveenshakil (Aug 26, 2013)

Alnaibii said:


> Naveen, AACA asks for your diploma and coursework, and they assess that your studies are equivalent to an AU Architecture School. DIAC will check your work experience after you apply.
> Have you read and completed Form M on AACA site? There is a separate section for registration, and you only fill it in if you are registered.
> 
> I've sent my file about a month ago, I don't have a response as yet.
> ...


I have read form M i havent completed it as i have to do IELTS first.
do you mind if I ask you how you sent your coursework?
i understand sending them certified transcripts, syllabus, degree certificate, is the basics they require. Any other insight as to other documents I should be sending?


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## Alnaibii (Aug 1, 2013)

You do not need IELTS for AACA.
I sent my Diploma - certified, plus certified translation, and the coursework, with no. of hours per each course, and the grades, also translated. No syllabus, but you can send it if you want. And my registration, as I have been registered for many years, and i added a certificate that I did not have any professional misconduct.


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## naveenshakil (Aug 26, 2013)

thanks for clarifying that. Is it mandatory to be registered?! 
if so i have no chance at all!


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## Alnaibii (Aug 1, 2013)

To my knowledge, registration is not mandatory. I think that not every country has a registration body like AACA or RIBA.
I asked them if I should fill in that section, and they answered that only if I am registered, otherwise leave it blank.
Anyway, if you are worried, just drop them an email, they answer pretty quick.

I suggest keeping all questions about AACA on the other thread http://www.australiaforum.com/visas...oes-processing-time-take-skills-assessed.html, and keep this one only for your exclusion problem.

cheers


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## naveenshakil (Aug 26, 2013)

thanks! sorry about that, i will keep them separate!

on the 3 year exclusion period - with the help of mark i filled out and sent the form 424a, however i read somewhere that even if you submit that, it doesn't necessarily mean that they would disclose that information.
But fingers crossed. Any information from them on my file would help clarify a lot!


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