A Ban is a Ban – Unless it’s Not

There is a nasty little rule in the Immigration Act , which has given a lot of people grief and trouble in the past. It says that you cannot be granted a visa if you have “at any time, been removed, excluded, or deported from another country.” That is a permanent ban, no matter how long ago this happened to you. The only way to get past this is to request a Special Direction from the Minister of Immigration. See James Turner’s recent blog about deportation where he mentions this.

Quite often, people are banned from applying for visas to Australia for 3 years. When they try to get a New Zealand visa, they are told that they were “excluded” from Australia so that they can’t get a New Zealand visa. In many cases, this is wrong, and they were not excluded at all.

Being “Excluded”

Now, it is pretty clear in many cases what it means to have been removed or deported. Being put on a plane home by Government officials is how people commonly imagine deportation. In New Zealand, you are “deported” if you leave the country voluntarily, and Immigration is legally able to serve a Deportation Order on you – even if they have not done so yet.

But what does it mean to have been “excluded”? The Immigration Act is not very helpful because it doesn’t describe what it is. It basically refers to people who are not allowed to get any kind of visa at all unless the Minister intervenes. This includes people who have committed serious crimes, or are likely to; or those who represent a risk to security or public order.

The High Court considered this in the case of EM decided in 2019. After looking at the legal context, Justice Cooke concluded that to be excluded means to be completely prevented from entering a country – “re-entry is not allowed”:

To be excluded from another country contemplates a prohibition on re-entry into that country. If a person has committed some transgression that adversely affects their rights to re-enter a foreign country but it does not remove those rights, they will not have been excluded.

Chief Executive of the Ministry of Business, Innovation and Employment v EM [2019] NZHC 1966 (13 August 2019) at [36]

The Judge rejected the argument by the Government’s lawyers that partial prohibition upon entry still amounted to exclusion. Mere restrictions on entry were not sufficient. On the other hand, a complete prohibition on entry, even if it was temporary, would amount to exclusion.

The Australian Ban – PIC 4014

In most cases, when you apply for an Australian visa, you must meet one or more of the Public Interest Criteria (“PIC”) set out in the Migration Regulations. These set out risk factors to be considered when deciding whether to grant the visa. One that features frequently is PIC 4014, which applies to anyone who left Australia while they were an overstayer, or while they held certain types of Bridging Visas. They can only get a visa which requires PIC 4014 to be met, if:

  • they apply more than 3 years after they left Australia; or
  • they can show that they have “compassionate or compelling circumstances” affecting the interests of Australia, Australian nationals, or New Zealanders (again, this is a simplification).

The second option is a bit like the Special Direction avenue available under NZ law.

Importantly, though, PIC 4014 is not used for every visa type. Exceptions include certain job-based and partnership visas, and some Residence-class visas. This means that the PIC 4014 ban is not a complete ban. The problem is that Australian Home Affairs uses the term “exclusion” when they make their decisions. However, they are not applying NZ law. Their reference to “exclusion” doesn’t automatically mean the same thing as it does in this country.

EM in the High Court case mentioned above got caught out by PIC 4014 too. The High Court Judge in the EM case said that if EM had already tried, and failed, to get visas under the other categories available to him, then this would show that he was completely excluded for that 3-year period – that is, there was no way he could get a visa. However, as he had not made the attempt, he was not excluded.

Moral of the Story

To be “excluded” means a complete ban on entry into a country in any way, even if only for a temporary period. Merely being prevented from applying for certain types of visas during that period is not enough.

If you know someone with a similar history who has been told by Immigration New Zealand that they cannot get a visa, there may be an answer to that. It will depend on their personal background and their experience with the immigration authorities of the other country.

What I have set out above may not undo the problem in all cases. However, it is certainly something we can take on. Contact us to find out if we can help.

About Simon Laurent, Lawyer

Principal of LaurentLaw Barristers & Solicitors. NZ immigration law specialist.
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