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Overstaying Your Visa

Written by Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

The laws regarding overstaying Australian visas are outlined in the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). 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 a person remains in Australia after their visa has expired they will be considered 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 on Form #1008. 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 and provided they can meet certain other criteria. It may be in their interests to seek legal advice on this.

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. This period will apply even if they left Australia voluntarily. Further, even after this three year period has finished, they 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 they have not already paid them. 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 as to your options 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, giving them time to apply for a different visa. Their new visa options will depend on whether or not they have been refused a visa since their arrival in Australia (other than a bridging visa) and the amount of time they have overstayed their visa.

If a person has been refused a visa, or if your visa has been cancelled, they will only be able to apply for a protection visa, a temporary visa to holiday, work or study if they are a New Zealand citizen, or a person 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 if they can show that they became an unlawful citizen and were guilty of overstaying 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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