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Overstaying Your Visa

The laws about overstaying your visa are outlined in the Migration Act 1958 (Cth) and the Migration Regulations 1994. When a person applies for an Australian visa, they agree to comply with all of the conditions of that visa, including the requirement to leave Australia before the visa expires. If a person stays in Australia after their visa expires they become an unlawful non-citizen. An unlawful non-citizen can be detained in immigration detention and deported to their country of origin or to any country they have the right to enter. The Australian government can recover the costs associated with deportation from them.

If a person knows that their visa will be expiring soon they should sort out their immigration status before their current visa expires. They may be able to apply to extend their current visa, apply for a bridging visa or apply for a different class of visa, depending upon their reasons for wanting to extend their stay in Australia.

When a person overstays a visa, it is important that they contact a lawyer or Migration Agent immediately and receive legal advice about their options. Overstaying a visa can have significant consequences if a person wants to return to Australia in the future. If a visa has expired and the holder has booked transport to another country they should not attempt to leave the country normally as they may be arrested and detained. A person in this situation should apply for a Bridging Visa E on Form #1008. This is likely to be granted and the person will usually be allowed to stay until the date of the flight.

Overstaying a Visa by less than 28 days

A person may be able to apply to stay in Australia because of their relationship with a citizen or permanent resident if their visa has been expired for not more than 28 days and if they can meet certain other criteria. If you are in this situation, it is advisable to seek legal advice. 

If a person is willing to sort out their visa status they will be referred to Status Resolution Service which can help them with their immigration matters. If a person contacts Status Resolution Service within 28 days of their visa expiring, they may be able to extend 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 stays in Australia illegally for more than 28 days after their visa has expired, any future application they make for an Australian visa will be subject to an exclusion period. That means that they will be barred from being granted a visa for at least three years. The exclusion period will apply even if they left Australia voluntarily. Further, even after the expiration of this three year period, the person will not get another visa until they repay any debts they owe to the Australian Commonwealth Government – for example, the costs of detaining and removing the person from the country if they have not already paid these costs. However, even if a person has overstayed their visa by a period of over 28 days they may still have options available to them and should seek legal advice. 

Further Visa Options

A person may be able to apply for a bridging visa whilst the Immigration Department finalises their matter, in order to buy time to apply for a different visa. A person’s new visa options will depend on whether or not they have been refused a visa (other than a bridging visa) since they arrived 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 another visa if it is a protection visa, or a temporary visa to holiday, work or study (if they are a New Zealand citizen, or a person on certain classes of partner or child visa). 

If the person has previously applied for a protection visa and been refused they are not permitted to apply for another protection visa unless they leave the country and apply from outside Australia. A person in this situation can only apply for a partner visa if they can show that they became an unlawful citizen and overstayed their visa because of factors that were outside their control.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

Tanguy Mwilambwe - National Practice Director - Brisbane

This article was written by Tanguy Mwilambwe - National Practice Director - Brisbane

Tanguy is the National Practice Director in the areas of Administrative Law and Immigration Law. He is able to assist clients in court matters throughout most Australian jurisdictions, in relation to Administrative and Immigration decisions. Tanguy has appeared in the Administrative Appeals Tribunal, Federal Circuit Court of Australia, Federal Court of Australia, state courts (including Supreme, District and Magistrates Courts)...

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