Overstaying a Visa: What are the Consequences?
If you are still in Australia when your visa expires, it indicates that you have exceeded the allowed stay period of your visa. You shouldn't underestimate the power of an overstay case because it is a violation of the law. It is better to find a lawyer to help you with your overstaying visa case right away as the longer you remain in the country without a valid visa, the worse the consequences.
Migration law makes no distinction between those who have inadvertently become unlawful (e.g., by forgetting to renew their visa), those who have deliberately overstayed their visa, or those who have entered Australia unlawfully (e.g. stowaways). These people are called unlawful non-citizens.
In some situations, however, are recognised by the immigration department to grant you a visa to remain in Australia. In most cases, if you are not a dependent child or a refugee seeking a Protection visa when you become an unlawful non-citizen, there are some other choices ahead for you.
Are there Consequences of Overstaying a Visa?
Overstaying an Australian visa can result in serious issues, including being held in immigration detention, being deported from Australia, and even being barred from applying for Australian visas in the future. None of these are desirable outcomes, and all of them are results that we strongly advise you to avoid at all times.
Being an unlawful non-citizen represents a violation of Australian immigration laws. The consequence of this is that any breaches will be recorded in the Australian immigration system, which might have a negative impact on your future visa applications in Australia or maybe for other countries.
When you apply for Australian visas, the application form asks whether you've ever been refused or had your visa revoked to any other country. This is the immigration department's way of determining whether you will follow Australia's migration rules and fulfil the conditions and requirements of the visa you are applying for.
Will You Be Deported for Overstaying a Visa?
Yes, if a non-citizen overstays their visa and did not make any arrangements to leave the country on their own or did not notify the Australian immigration authorities about it. They will be deported. Overstayers will additionally be fined for the cost of deporting them from the country.
It's important to contact the Australian authorities if you haven't resolved your visa issue before it expires. They will recognise that you have plans to leave the country and follow immigration law. Keep in mind that how you depart Australia may influence your chances of getting a visa in the future.
Will You be Arrested or Imprisoned for Overstaying a Visa?
It is very important that, if your visa has expired and you wanted to return to your home country, the first thing you need to do is to get in contact with Australia’s immigration department and notify them of your intentions of leaving the country. The reason is that if you try to leave the country without a valid Australian visa, Australia’s border officials may detain you. You may be imprisoned, even though you have not been convicted of an offence. It is important that, if you do find yourself in a situation where you will be imprisoned or detained, get in contact with an immigration lawyer right away.
What to Do If Your Australian Visa Has Expired and You Overstayed?
Only a lawyer can give you independent, expert legal advice. Lawyers are trained to interpret the law and apply it to individual cases. Lawyers also know migration law, its practices, and procedures.
A lawyer will:
define whether you have a legal issue suitable for consideration on complex visa applications and appeal
provide practical options available to you, and
explain the costs involved in the application and appeal litigation.
You can apply for the following within a certain timeframe:
It is important to note that some of these visas require you to apply within 28 days after your last substantive visa expired, and some within 12 months.
To meet the criteria for that visa, you may need provide the lawyer some evidence in relation to:
factors beyond the applicant's control
compelling reasons for granting the visa
complied substantial compliance to your last visa’s conditions
These visas can be applied in the circumstances that the applicants overstayed without any visas in effect. Rather than holding any substantive visas and bridging visas.
When you apply for your visa, getting expert professional assistance is always preferable so that you can be certain that your documents are genuine and legal, and will not expose you to allegations of illegally immigrating to Australia or fraud in your visa application.
What to Do If You Missed the Timeframe Again?
There is also an exception in the circumstance that you apply for some of above-mentioned visas even if you are out of the timeframe again (out of the 28 days or 12 months) . The delegate may consider your situation with some compelling reasons, such as a serious accident or illness, that are beyond your control.
Example case:
1. A holds a 500 student visa expired on 01/01/2022.
2. A is eligible to apply for a 820/801 partner visa.
3. A was supposed to apply for this onshore partner visa by 01/01/2022.
4. with compelling reasons, A can still apply for this partner visa within 28 days by 29/01/2022.
(Schedule 3 criterion 3001,3003,3004)
5. (more than 28 days) - Unless the Minister is satisfied that there are compelling reasons for not applying 3001,3003,3004. This means A still can apply after 28 days if A meets the 'unless' condition.
As of precious cases, some applicants were successfully granted a visa where they provided considerable evidence to show the delegate these compelling circumstances for an onshore partner (subclass 820/801) visa, such as:
- relationship length with the sponsor;
- applicant’s support to the sponsor’s physical and mental health issues;
- the support needs of the sponsor’s child;
- financial loss the sponsor may suffer if the visa was refused;
- other significant impacts or hardships of leaving…
Hurry up and check on your eligibility and circumstances with us!
How Can Agape Henry Crux Help You?
If you want to find out more about your visa or need advice on your Australian migration matter, contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02 8310 5230 or emailing us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Japanese, Mandarin, Cantonese, Indonesian, Burmese, 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.