Overstaying Your Visa
Overstaying Your Visa
The laws regarding overstaying Australian visas are outlined in the Migration Act 1958 and the Migration Regulations 1994. When a person applies for a visa to come to Australia, they agree to comply with all of the conditions of that visa, including the requirement that they leave Australia before the visa expires. If the person remains in Australia after their visa has expired, they will be an unlawful non-citizen. An unlawful non-citizen can be detained and then deported from Australia and the Australian government can recover the associated costs from them.
If a person is in Australia and their visa will be expiring soon, they should resolve their immigration status before their current visa expires. They may be able to extend their current visa, apply for a bridging visa or apply for a different class of visa, depending upon the reasons why they want to extend their stay in Australia.
When a person is overstaying a visa, it is important that they contact a lawyer or Migration Agent immediately and be advised of their options. Overstaying a visa can have significant consequences if the person wants to return to Australia in the future for any reason.
If a visa has expired and the holder has purchased a ticket to another country they should not go to the airport and attempt to leave normally as they may be arrested and taken to a detention centre. A person in this situation should apply for a Bridging Visa E. This will most likely be granted and they will usually be allowed to stay until the flight date.
Overstaying a Visa by less than 28 days
A person may be able to apply to remain in Australia because of their relationship with an Australian citizen or permanent resident if their visa has been expired for less than 28 days, provided they can meet certain other criteria. If you are in this situation, seek immediate legal advice.
If a person is willing to sort out their visa status, they will be referred to Status Resolution Service who can help them with their immigration matters. If a person contacts them within 28 days of their visa expiring, they may have the option of extending the visa or applying for a bridging visa while the application for a further visa is considered.
Overstaying a Visa by more than 28 days
If a person remains in Australia illegally for more than 28 days after their visa has expired, any future application for an Australian visa will be subject to an exclusion period. That means that they will be unable to be granted a visa to travel to or to stay in Australia for a minimum of three years. The three-year period will apply even if they left Australia voluntarily.
After the three-year period has finished, the person will not be able to get another visa unless they repay any debts they owe to the Commonwealth Government. This will include the costs of detaining and removing them from the country (if these costs have not already been paid.)
However, even if a person has overstayed their visa by more than 28 days they may still have other options available. You should seek legal advice if you are in this situation.
Further Visa Options
A person may be able to apply for a bridging visa whilst the Immigration Department finalises their immigration matter. This visa gives them time to apply for a different substantive visa.
The person’s new visa options will depend on whether they have been refused a visa (other than a bridging visa) since their arrival in Australia and the amount of time they have overstayed their visa by.
If a person has been refused a visa, or if their visa has been cancelled, they will only be able to apply for a protection visa, a temporary visa to holiday, or a work or study visa if they are a New Zealand citizen, or if they are on certain partner or child visas.
If the person has previously been refused a protection visa they cannot apply for another protection visa unless they leave the country and make their application from outside.
A person can only apply for a partner visa after overstaying a visa if they can show that they overstayed their visa because of factors that were beyond their control.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
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Michelle Makela
National Practice Manager
Michelle Makela is a Legal Practice Director at Go To Court Lawyers. She holds a Juris Doctor, a Bachelor of Science (Psychology) and a Master of Criminology. She was admitted to practice in 2006. Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.
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