# Urgent help! what are compassionate enough reasons to waver 3 year exclusion period t



## emilie (Mar 1, 2013)

Australian citizen about to apply for an a prospective marriage visa with my British fiance and boyfriend of five years. However, he has overstayed an Australian working visa and is currently on an 3 years exclusion period which ends in June this year. We will have to be apart when my UK visa ends in three weeks so i am desperate for help.. Really need to know if his ban could be wavered by two months, and if being a couple without any option for living together otherwise is compassionate enough reason for a waiver? help someone please


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## jmcd16 (Aug 5, 2012)

I doubt that will count as tons of couples on here are being forced apart for visa reasons. Also:
Also relevant are conditions 4013 and 4014 of Schedule 4 of the Migration Regulations, which govern persons who:

Had a visa cancelled under s.116 of the Migration Act for failure to comply with the conditions of their visa, including working in breach of visa conditions; or
Left Australia as an unlawful non-citizen more than 28 days after the expiry of their substantive visa; or
Left Australia as the holder of a bridging visa class C, D or E, unless the bridging visa was granted while the person held a substantive visa or within 28 days of the expiry of their last substantive visa.
In these circumstances, a person cannot be granted a visa for which they are required to satisfy these conditions unless they apply for the visa more than three years after leaving Australia, unless there are compassionate or compelling circumstances affecting an Australian citizen or permanent resident or compelling circumstances affecting the interests of Australia.

So the compassionate/compelling evidence must effect you, not him. I've heard of people trying on the basis of pregnancies, especially complicated ones... But I personally know someone who had theirs refused on those grounds.

My suggestion to you is to seek professional help on this one. And I don't just mean for trying to get the waiver... That mistake of his is going to prejudice any further applications, fair or not. You are most likely in for difficulty trying to get him into Australia. 

Are there any options for you to extend your stay with him? Is there another place you could both go together and live/work for a little while? Can he get a working holiday visa for NZ for example? Then you both go there for some time?

I wish you the best of luck, but I highly, highly doubt you will have success waiving the exclusion period. It's apparently a really difficult thing to do and you don't appear to have any evidence other than being apart - which is definitely not enough. You could try getting a Shrink in Oz to write a stat dec saying its effecting your mental health... But even then...

Please consider getting professional assistance with your application. At the very least, I suggest really doing research and gathering evidence starting immediately. You really need a bullet proof case thanks to his silly mistake.


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## emilie (Mar 1, 2013)

we cannot get married in the UK now as i am no longer on a working visa i am just a visitor, therefor its not legal to get married. 
Also, i have read on the IARC exclusion periods' PDF file on google that :

'If you left Australia voluntarily after being unlawful (and have not had a visa cancelled) then you are not
banned from applying for a permanent or conditional temporary visa.' (aka our prospective marriage visa)

I quote this because he did not get his visa cancelled he handed him self into immigration. it then states:

'However, you will not be granted a temporary visa for a period of 3 years from the date of your last departure
from Australia (unless waived) if:
• you left Australia more than 28 days after the expiry of a substantive visa, or
• you left Australia while holding a Bridging visa C, D or E (or an extension of that visa) which was granted'
is a prospective marriage visa a temporary visa? 
This is why i am confused.. because at first it says we are not banned from applying for a conditional temporary visa, but then says we will not be granted a temporary visa.??


'What is a conditional temporary visa?
A conditional temporary visa is a temporary substantive visa which will lead to the grant of a permanent visa if
the relevant conditions or criteria are satisfied. This includes:
• temporary Partner visa
• Prospective Marriage visa.'

Im not sure what to think.. can anyone make sense of this??


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## myaccessaustralia (May 16, 2012)

Hello Emilie,

If your partner is affected by Public Interest Criteria 4014 (technical term for the bar that he is subject to) - this bar doesn't apply to Prospective Marriage 309 visa. He doesn't have to wait 3 years before applying for this visa. The 309 visa is a conditional temporary visa that will lead to PR.

He can call DIAC to check which PIC 4014 applies to him.

But he will be prevented from getting other types of temporary visas, like an eVisitor visa. So I think he'll need to remain outside of Australia until a decision is made on the 309 visa.


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## jmcd16 (Aug 5, 2012)

That's good news, Emilie! Good luck with your application.


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## emilie (Mar 1, 2013)

Thank you your information I will be sure to do this  
both for


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## dhamal (Nov 26, 2013)

*3 year excusion period*



myaccessaustralia said:


> Hello Emilie,
> 
> If your partner is affected by Public Interest Criteria 4014 (technical term for the bar that he is subject to) - this bar doesn't apply to Prospective Marriage 309 visa. He doesn't have to wait 3 years before applying for this visa. The 309 visa is a conditional temporary visa that will lead to PR.
> 
> ...


Hi Pen cheng,
I am currently overseas as a result of withdrawal of 835 onshore application. I was a secondary applicant in that application. Because we divorce, I withdraw my application on 5April 2013 while I was in australia and Case officer sent an e meil to my MARA agent on 8 April 2013 notifying me to leave Australia within 28 days.Unfortunately my MARA agent forgot to frward that e mail and he forwarded me on 13 may 2013. I went to immigration on 14 may 2013 and explain my situation. They have granted me Bridging visa E untill 29 may 2013 and I left Australia on 25 May 2013.
Now I am planning to apply for 457 from overseas, I would like to know whether I am affected by 3 year excusion period or not?
Thanks in Advance
Regards
Dhamal


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## usamah51 (Dec 11, 2013)

*4014 - Public interest criteria. problem ............HELP*

I am applying student visa from Pakistan. I previously came from Australia after studies but now when I applied for further studies, my case is somehow coming under the clause 4014 Public interest criteria, and the 3 years period before grant. IF somehow I still want the visa, I need to provide compelling circumstances affecting interests of Australia OR compelling or compassionate circumstances affecting the interests of an Australian citizen, permanent resident etc. 
Please help me as to what compelling circumstances should I mention. ?
Please reply soon......


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