I've Overstayed My Temporary Visa - What Now?
When you are granted any temporary Australian visa, you must be cognizant of its expiry date and any conditions that have been imposed that would prevent you from being able to extend your stay. For example, visa conditions 8503, 8534 and 8535 are all variations of no further stay conditions which will impact your ability to be granted further visas whilst you remain in Australia once your temporary visa has expired.
If you do not depart Australia on or before your visa’s expiry date, and you do not hold another valid visa, you will become what is known as an unlawful non-citizen. As an unlawful non-citizen, you may be subject to several adverse consequences.
Consequences of Overstaying your Visa
If you overstay your temporary visa and are an unlawful non-citizen, you become subject to several consequences, namely:
i. The Department of Home Affairs (‘the Department’) may detain you and have you removed from Australia.
If it is suspected that you are involved in criminal activity or there is a possibility for violence to transpire the Department may ask the police to assist in locating you.
In trying to locate you, the Department may request information from individuals or government departments, search premises and freeze assets.
If you are removed from Australia, you will be liable for the costs associated with doing so and the Department may take and/or freeze your assets in order to obtain payment.
You as well as others that aid you in certain ways may be charged with an offence.
The Migration Act 1958 (Cth) sets out several offences that relate to the conduct of an unlawful non-citizen as well as employing or aiding unlawful non-citizens.
If you are charged with such an offence, you may face a fine or even imprisonment.
This can negatively impact your future visa applications. · Most temporary visas will contain public interest criterion (‘PIC’) 4014. If PIC 4014 affects you, you will be prevented from being granted most substantive visas for at least 3 years commencing on the date of your departure from Australia.
Whether you apply for another Australian visa or a visa for another country, your application could be refused based on character grounds.
What Next?
If you have overstayed your visa, there are two possible paths that you can take moving forward:
You could apply for another substantive visa; or
The substantive visas that you can apply for are limited and are usually available based on how long it has been since you have held a substantive visa.
In some instances, additional criteria will be imposed based on the fact that you do not hold a substantive visa. Schedule 3 of the Migration Regulations 1994 (Cth) impose additional criteria to unlawful non-citizens. Specifically, criteria 3001, 3002 and 3003. These criteria impose a timeline of when a subsequent visa application must be made.
You could leave Australia voluntarily; or
If you are not in detention, in order to leave Australia you will need a valid passport and not be wanted in connection to an offence or ongoing legal proceedings. · If you need help in departing Australia you can contact your home country’s embassy or the High Commission in Australia, the International Organization for Migration or the Homeward Return Program.
At the airport, you may be questioned, which will most likely result in a lengthy delay. Therefore, a few days before you depart, we recommend that you apply for a Bridging visa E (subclass 050) (‘BVE’).
In order to apply for a BVE, you will need to register for a personal ImmiAccount, and then apply online at ImmiAccount. You will also need to provide your ticket to leave when applying.
Within 24-48 hours after you have applied for the BVE, the Department will schedule a telephone interview with you that will last approximately 10 minutes. In this interview, they will ask you to confirm how long you have been in Australia, your residential address and confirm your intended departure dates.
If you find yourself in a situation where you have become an unlawful non-citizen, do not despair. We recommend that you seek immigration assistance so that professionals can help you best navigate your next steps.
How Can Agape Henry Crux Help You?
Contact us if you require any assistance in relation to an approaching visa expiry date or if you have overstayed your current visa.
You can book a Migration Planning Session with one of our immigration lawyers or Accredited Specialist(s) in Immigration Law to seek professional advice by calling 02-8310-5230 or emailing us to book a time at info@ahclawyers.com.
We speak fluent English, Korean, Japanese, Mandarin and Malay. If these aren’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.