What Options Available If Overstayed Australian Visa
Overstaying Australian Visa Expiry Date, What Are Your Options Now?
People overstay for a number of reasons whether it is because they want to stay in the Country because they have family, friends, a relationship or just a life in general and see no options in which they have to stay. Maybe it is because they are scared to return back to the life they had in their home country and feel more comfortable in Australia. It might be that they simply didn’t understand the limitations and conditions of their visa and are unaware that they have overstayed Australian visa.
I know it can be a seriously stressful situation after you’ve overstayed your Australian visa, but breathe deeply, and let’s go through some of the options that are available to you.
It doesn’t automatically mean you have no options, but you should always report this to Immigration.
Here are some options available to you, if you have overstayed in Australia:
1. Overstayer Must Report to Status Resolution Support Services (SRSS)
This may not sound like an attractive course of action, especially if you’ve overstayed your visa for years now, but Immigration has implemented a service for this scenario, Status Resolution Support Services (SRSS).
Current service providers
The SRSS providers, as of December 2018, are:
- New South Wales
- Settlement Services International (SSI) (Street address (head office): 2/158 Liverpool Road, Ashfield; Phone number: (02) 8799 6700)
- Life without Barriers (Street address: Suite 1, Level 1, 81 Railway Street, Rockdale; Phone number: (02) 9508 4000)
- AMES Australia (Street address: 255 William St, Melbourne; Phone number: 13 2637)
- Life without Barriers (Street address: Level 3, 554 Church Street, Richmond; Phone number: (03) 8480 9600)
- Access Community Services (Street address: 92 Wembley Rd, Logan Central; Phone number: (07) 3412 8222)
- Multicultural Development Association (MDA) (Street address: 28 Dibley Street, Woolloongabba; Phone number: (07) 3337 5400)
- South Australia
- Life without Barriers: (Street address: 63 Commercial Road, Salisbury; Phone number: 08 8259 3600)
- CatholicCare Tasmania (Street address: 35 Tower Road, New Town; Phone number: (03) 6278 1660)
- CatholicCare Tasmania (Street address: 35 Tower Road, New Town; Phone number: (03) 6278 1660)
- Western Australia
- Mercycare (Street address: 38 Ord Street, West Perth; Phone number: (08) 9442 3444)
- Northern Territory
- Australian Red Cross (Street address: Level 1, 13 Scaturchio St, Casuarina; Phone number: (08) 8924 3960)
- Australian Capital Territory
- Life without Barriers
This service will give you the opportunity to resolve your unlawful non-citizen status the right way, through Immigration.
In this scenario, the department won’t detain you, as you are working toward a resolution on
You don’t want to end up continuing to remain an “unlawful non-citizen,” as this can cause you more serious problems down the road.
For instance, if you choose to continue being an unlawful citizen or ilegal and do not try to work with Immigration you have a greater risk of being detained and removed from Australia and you may need to pay for the costs of your deportation to the Australian Government but this doesn’t have to be the outcome.
If you contact Immigration within the 28 days grace period of your visa expiry, you may have more options available to you than if you overstay your welcome for more than the 28 days.
2. What Happens If you Overstayed Before The 28 Days Grace Period Is Over?
Before the 28 days grace period is over is it still possible for you to stay in Australia if you have a relationship with Australian Citizen or PR and you are able to satisfy certain other criteria?
You must get in contact with the Community Status Resolution Service who helps with these immigration matters before the end of the grace period. In this case you will still have a chance to extend or apply for a bridging visa while an application for another visa is in process.
Depending on the visa you have overstayed will determine the category of bridging visa you need:
- If you have overstayed a Visitor Visa – it might be that you are applying for a student visa or a partner visa which is in process but you have overstayed your Visitor visa than it is possible to get a bridging visa in the meantime;
- If you have overstayed a Student Visa – if you are still within the grace period you can try to apply for a further student visa or a graduate visa.
3. What Happens If You Overstayed After The 28 Days Grace Period Is Over?
After the end of the 28 day grace period if you have remained in Australia illegally then the situation becomes a lot more serious and complicated. You must report your overstay to the department and leave the country if you do not report first and attempt to leave then you may be detained.
If you need extra time to get arrangements in order then you may and try to apply for a bridging visa E to stay but only for a short time.
At this point you will be subjected to an exclusion period meaning that you will be banned from obtaining a visa or travelling to Australia for a minimum of 3 years.
When this exclusion period has ended you will have to repay all debts to the Australian Government that resulted in your removal from the country whether that be the cost of detention or for the flight out of the country.
This will apply even if you left Australia voluntarily. There are still options available to you if you have overstayed past the grace period but it is advised you seek legal advice if you find yourself in this situation.
Learn more about overstaying your visa here.
What Should I do if I Have Overstayed in Australia?
Even if you have gone past the 28 day grace period there are still some options left to be able to be able to stay in Australia.
If you become an “unlawful non-citizen” or illegal in Australia, meaning you are overstaying your Australian visa, you do have the option of applying for a Bridging visa E whilst the Immigration Department finalises your immigration matter, which would allow you to make the necessary arrangements for your departure or find out your eligibility for applying for a different visa onshore.
A Bridging visa can also be applied for allowing you to stay legally in Australia short term until your immigration matter is finalised. At this point only the bridging visa E will be possible but note that if you are granted the visa to buy yourself time once you have to leave, as this visa is only temporary, you will be subject to a 3 year ban from entering Australia.
If you would like to discuss your eligibility for a bridging visa book a consultation.
What Are My Options to Apply Onshore Visa if I’ve Overstayed My Visa?
Your visa options for Australia all depend on whether or not you have been refused a further visa since your arrival in Australia and the amount of time you have overstayed your visa illegally.
If you have overstayed a Visitor visa while you were applying for another visa then you may apply for a bridging visa such as Bridging Visa C as you technically hold no substantive visa at this point while waiting for the decision on your next visa to be made.
The main factor is often if you have applied for a further substantive visa before your current visa has expired in that case it shows that you were attempting to find a way to stay further lawfully.
In some of these circumstances all the depending on the visa and the time the bridging visa will be applied automatically.
If you are in a relationship with an Australian Citizen or Permanent Resident, you may be able to apply for a Partner visa on-shore if you have compelling reasons, as you may be subject to the Section 48 Bar. The section 48 of the Migration Act limits any further visa applications by a person whose visa application has been rejected or whose actual visa has been cancelled but there are exceptions and you may still be eligible to apply.
Please contact a registered migration agent to go over all of this with you as there are many different options cases depending on the specific circumstances.
Book a consultation to discuss your options here.
Overstayed in Australia and getting Married in Australia, Is it possible?
If you are in a long term relationship with an Australian citizen, you may be eligible to apply for the partner visa but there may be some regulations and restrictions to look at so you can double check your eligibility.
You should check with a migration agent or read up on the regulations for Schedule 3. You would need to be in a genuine relationship and be able to meet the schedule 3 regulations for example, be able to show that you became an unlawful citizen because of factors beyond your control.
This regulation can be waived if you have compelling circumstances you can show. If you are able to apply for a Partner visa on the basis of marriage you will need to meet these specific requirements as well:
To be eligible to apply for a Partner visa when you have overstayed your visa, you need to be in a de facto relationship or married to your partner at the time you apply for the visa.
- You will need to be sponsored by an eligible person (your partner);
- You will need to prove that your relationship is genuine and that you both have a mutual commitment to a shared life together as husband and wife to the exclusions of all others;
- Meet the health and character requirements;
- You will need to show that you and your partner are living together, if not at the moment you will need to show that your separation is only temporary.
If you are able to apply for a Partner visa as a de facto partner you will need to meet the following specific requirements:
- You and your partner will need to prove that you have been in the de facto relationship for 12 months prior to lodging your visa application;
- You and your partner will need to be 18 years of age at the time your visa application is made;
- You will need to be sponsored by an eligible person (sponsor);
- You will need to prove that you and your partner arb e in a genuine relationship and have a mutual commitment to a shared life to the exclusions of all others;
- You will need to meet the health and character requirements;
- You may not be related by family;
- You will need to prove that you and your partner are living together if not you will need to show that your separation is only temporary.
You need to keep in mind that when the Department is assessing your Partner visa application they are looking at if you and your partner have been living together for a long time and evidence that you and your partner share financials and social commitments.
CASE STUDY – Overstayed in Australia after Student Visa Expired
A Student Visa Refusal Case Study based from our client, Peter (Not his real name).
“2 years ago I was on a student visa studying in Australia and at the end of my studies and just before my student visa was due to expire I was considering completing my degree in Australia.
I could either finish my tertiary study in Australia whilst working as a doctor in training at an Australian hospital or I could return home to my country and continue studying there.
I was in a state of panic as I knew that my current visa would be due to expire soon and that I had to make a decision quickly as places were filling up fast.
The opportunity was too good to pass on and so I spoke with a fellow international student and discussed my concerns.
The student advised me that I did not need to panic as I would be granted a bridging visa automatically after my visa expired to re apply for a student visa or leave if I wanted as she had done the same thing previously.
My student visa had expired and I received my confirmation of enrollment into my new course of study and hospital placement 2 weeks later.
I proceeded to lodge my application for a new student visa.
I was under the impression that I had been granted a bridging visa already as that is what my peer had advised me.
It Was A Mistake. . .
A couple of weeks later I received an email from the department of immigration advising me that I was not eligible to apply for the student visa as I was not holding a valid visa at the time of the application.
Thus Immigration considered me as having stayed illegally in Australia and would need to make arrangements to leave and return to my country immediately.
I was advised that a section 48 bar was also applied and I would be facing a 3 year ban from applying for any Australian visa or re entering the country.
I was shocked to say the least and so I contacted ONE derland Consulting, a migration agent immediately.
I was told that ONE derland Consulting could resolve my situation.
I arranged to have a consultation with the senior registered migration agent Mrs. Indah Melindasari.
I explained my situation to Indah and she was able to explain to me that a bridging visa is only granted after the application has been submitted and that I should have applied prior to my visa expiring.
Therefore I was considered as not holding a current valid visa at the time of applying which is a major part of the eligibility for any onshore Australian visa application.
Indah and her expert team at ONE derland Consulting was able to help me with my student visa case.
They took over my application and appealed the decision to the AAT (otherwise known as the Administrative Appeals Tribunal).
They were able to write a submission to the tribunal outlining the reason for my overstay, the reason I had applied without holding a substantive visa, the reason as to why a section 48 bar should be waived and the reasons as to why my visa should be approved.
With the help of ONE derland Consulting the decision to review my application was granted and the bar was removed.
Within a few weeks I was back to studying and my visa was approved.”
The Overstay Problem:
Peter did not research or seek the professional advice of an agent familiar and trained in Australian Migration laws and regulations.
Therefore he was not aware of the correct procedure when applying for a new visa onshore and this resulted in a refusal of his visa and a 3 year ban.
A visa refusal meant that any chance of applying for another visa in the future would be at high risk of refusal
A 3 year ban meant that Peter would not be able to apply for any Australian visa for the next 3 years and therefore meant that he would not be able to continue his medical study in Australia potentially jeopardizing his career of becoming a doctor.
The Overstay Solution – Compelling Reasons:
To appeal the decision based on compelling reasons as to why peter should be allowed to continue his study in Australia and the reasons as to why he did not follow the correct procedure of being the holder of a substantive visa at the time that he applied for his second student visa.
Seeking the professional advice and allowing a migration agent to take over the case and launch an appeal ensured that the correct procedure was being followed, and that the department of Immigration would be aware of the compelling reasons as to why this happened and why the visa should be granted.
Indah and her team at ONE derland were able to overturn the decision based on the following compelling reasons:
- Peter was unaware of migration laws and had not received the correct advice;
- The course of study was beneficial to his chosen career path;
- Any delay in his studies would be detrimental to his chosen career path, especially 3 years;
- His chosen career path was one that would benefit any community and was an essential occupation. Needed and in demand, not only in Australia, but all over the world;
- Peter was of good character and highly regarded by his peers;
- The study needed to be undertaken in Australia, he was enrolled and fees paid, and places in universities in his home country were taken;
- Peter had obliged by his previous visa’s conditions apart from the overstay of his last due to misinformation. His visa history was overall very good;
- If Peter did not seek the advice from Indah he may not have been aware that he was able to appeal the decision and may have left the country without completing his course and would have been facing a three year ban.
Who Can Help Me With My Overstay Case?
ONE derland Consulting has vast experience in dealing with overstay visa cases. Our success rate in winning overstay visas is second to none. You may speak to our Visa Specialists to understand your overstay solutions options.
Please note the purpose of this service is to discuss your visa options and your eligibility for each visa in Australia and the consequences involved in overstaying your Australian visa.
We will also assist you to make the right decision whether you should spend the time and money to proceed with the visa application onshore.
There will be separate fees and charges, in order to assist you with the visa application. Please speak to one of our Visa Specialists on 1300 827 159, alternatively you may book online consultation here.
All of our consultation is backed by a 100% MONEY BACK GUARANTEE program. If you feel, we are not professional, honest, knowledgeable and put you at the centre of the process you may request for a refund at the consultation. No questions asked, no hurt feeling guaranteed.