How To Appeal Australian Visa Overstay And Refusal
Having a visa refusal or overstaying the visa can be really frustrating right? You might be thinking that you don’t have any chance. Are you in this situation? Don’t worry, you are not alone. We’re gonna giving you an Australian visa overstay example based from one of our client story.
Case Study: Overstay Australian Visa with 3 Years Ban and Example of How to Appeal Australian Visa Overstay and Refusal
Carla and Chris (both aren’t their real names) had known each other for many years. They first met when they were 13 years of age when Carla’s family had taken her to Australia with them on a business trip and had been invited to have dinner with Chris’s parents who were partners in business with Carla’s father.
Carla had always remained in contact with and close to Chris, and they had visited each other often when their parents would meet in both Australia and Malaysia for business. Carla was 21 now and on Chris’s last visit to her in Malaysia they became more than just friends.
They had liked each other that way for a while now and it was made official in the month of June 2015 when Chris had asked Carla to be his girlfriend. It was easy for Carla’s parents to accept the relationship between Chris and Carla. They knew him well and trusted him like he was their own son and vice versa for Chris’s parents. They loved Carla dearly and treated her like their own daughter, insisting she and her parents stay with them whenever they would visit Australia.
In December 2015 Carla was travelling to Australia to spend time with her new love for Christmas. It was a big deal for Carla, she was travelling alone. Chris had moved out of home and had his own place now so she would be staying with him. It was a magical time for both Chris and Carla, they were like a real couple. They spent every minute of every day together and grew closer and closer.
Soon it was time for Carla to go back to Malaysia and she could not wait until the next time she would be able to see Chris. They had already planned for Carla to visit again in May, it would only be a few more months.
In May 2016 Carla returned to Australia on a 3 month Visitor Visa, it was in the third week of her holiday that she learnt that she was pregnant. In fact she was almost 4 months pregnant and it was only by chance that a routine visit to the doctor for nausea revealed the great news. Carla and Chris were overjoyed and couldn’t have been happier.
They both knew they wanted the baby and wanted to be together so after breaking the news to Carla’s Parents over a video call, Chris asked Carla’s father for permission to marry his daughter.
Carla’s Father insisted they be married immediately, he would not have his grandchild born out of wedlock and that after the baby was born she would need settle in Australia with her husband and baby as it was her duty as a wife and a mother that her child be raised in a traditional family environment with both parents or it will bring shame on the family. And so within a week Carla and Chris became husband and wife in a small ceremony and Carla’s life had been mapped out for her.
On July 16th 2016 just 1 week before Carla was to return to Malaysia to make arrangements and apply for the partner visa offshore she was rushed to hospital with extreme abdominal pain. It was at this time both Chris and Carla were made aware that there were complications with the pregnancy and Carla would need to give birth immediately meaning their child would be born almost 5 months premature.
On July 17th 2016 Kristy Ann was born, 5 months premature and very weak. She was placed immediately into an incubator crib and would spend the first part of her life at the hospital until further notice. During this time Carla’s Parents flew over to be close to their daughter and granddaughter.
Carla spent every moment at the hospital. She had to be there every single day to be able to breastfeed Kristy Ann. On the 23rd July 2016 Carla was supposed to fly out of Australia and back to Malaysia. She had contacted the airline the day before to cancel her ticket as Kristy Ann was still in hospital but Carla did not contact the Department of immigration, her visa had completely slipped her mind.
A month had passed and by this time Carla had now overstayed her Australian visa.
In fact she had not even given it a thought with the baby’s health occupying her mind. Carla thought that all she had to do was contact immigration and have her current visa extended. It was only when they contacted Immigration that Carla was made aware she could not extend her visa at it had already expired and that she had actually overstayed.
The department of Immigration had said that Carla did not comply with the conditions of her Visa and leave the country on the date that she was supposed to. Therefore she may be given a re-entry ban meaning that once she left Australia she would not be able to re-enter for another 3 years and now that she was in the country illegally she would need to make arrangements to leave immediately.
Carla was beside herself with emotion, she couldn’t leave immediately! Her baby was still in hospital and she couldn’t be banned for 3 years either, her baby needed its father and she could not bring shame to her family living separately from her husband.
She did not want to be away from Chris, especially not now. She was devastated. Chris and Carla did not know what to do so they sat down with Chris’s parents over dinner and discussed the situation. Chris and Carla wanted to dispute the 3 year ban, and so Carla wrote a letter to the department of Immigration pleading with them to please re consider, but to no avail.
They were advised that even if the ban was waived Carla would still have to leave the country and apply for another visa offshore. This was not physically possible. She couldn’t leave her baby and she certainly could not take the baby with her, especially being so ill.
They decided to ask for a help from a migration agent.
Chris and Carla sought the help of Indah Melindasari at ONE derland Consulting, an Australian migration agent who specializes in complex cases such as visa refusal and overstay. Indah was able to take over the application for Carla and assist with lodging an application on shore even though Carla had overstayed.
In order for Carla to be able to apply onshore and for chance of approval, Chris and Carla had to submit compelling reasons as to why she should be granted the visa onshore. In Chris and Carla’s case, the compelling reasons for Carla to be granted the visa onshore were a number of things including her genuine relationship with Chris, her baby being born in Australia and the fact that the infant was very sick.
Indah and our team at ONE derland Consulting were able to assist in preparing the submission for compelling reasons and were able to show not only the above, but also that Chris and Carla were in a compelling situation leading her to overstay and the relationship hardship that they would suffer should they be refused the visa.
Australian Visa Overstay Case Study – The Problem
Carla overstayed her visa and had not notified the department of Immigration before her visa expired that she would need to stay longer in Australia due to the compelling circumstances. A 3 year ban was applied and this meant Carla would need to leave immediately and would not be able to apply for another visa for 3 years.
Although she had written to the department to plead her case and they were willing to waive the 3 year ban due to the baby’s circumstance, Carla was still required to leave the country and apply for a new visa offshore.
The solution for Australian Visa Overstay
Carla and Chris seeked the help of ONE derland Consulting. An Australian migration agent who specializes in complex cases of visa refusal, overstay and appeals. They were able to submit a strong case and compelling reasons as to why Carla overstayed and why she should be allowed to be granted the visa whilst onshore. Carla’s visa was granted without any issues, even though she had overstayed a few weeks.
By hiring an agent who specialized in complex cases such as theirs, Carla and Chris were able to understand better the complex migration laws and obligations, they were able to take away some of their worry and focus from their visa issues and concentrate on the baby getting better by allowing ONE derland Consulting to take on the case and take over the application ensuring that their application was strong enough to be approved.
In general, a Re-entry ban cannot be removed.
A request to have a Re-entry ban removed will only be considered by the department if you have compelling and compassionate reasons and those reasons directly affect the interests of an Australian Citizen or Permanent resident. In Carla’s case the ban would have affected her daughters chance of survival and in turn her husband’s mental welfare.
A re-entry ban will also apply, if
- You provided false documents or false information to the Department of Home Affairs (DHA);
- You are considered to be a risk to the health, safety or good order of the Australian community;
- You are convicted of an offence against a law of the Commonwealth, or a law of an Australian state or territory;
- You are found to have breached a visa condition, for example, you worked when your visa had a no work condition;
- You hold a student visa but have failed to maintain appropriate enrolment, breached another visa condition, or have been found not to be a genuine student;
- You hold a visitor visa but were found not to be in Australia as a genuine visitor.
While you are in Australia you MUST hold a valid visa for the duration of your stay and comply with your visa conditions. If you have overstayed your visa and you do not do anything about it penalties will apply and it could affect the outcome of any visa you may apply for in the future.