Overstaying Your Visa

 

It is very common for visa holders to overstay their welcome in Australia without realising.

The Department of Home Affairs (Department) makes it abundantly clear that it is the visa holder’s obligation to comply with their visa conditions, including being aware of their expiry date.

However, when life gets in the way, these requirements can be forgotten.

What happens when you realise you have overstayed your visa?

 

What does overstaying your visa mean?

 

It is important to note that each temporary visa has a specific validity date. This is found on the visa grant letter.

You overstay your visa when you have remained in Australia past the specified date and you do not hold a substantive visa or a bridging visa.

For example, if your visa’s expiry date was 1 July 2023, but you remain in Australia on 2 July 2023 without holding a substantive visa or a bridging visa, you have overstayed your visa.

You can also overstay your visa when you have remained in Australia past the specified period even if your visa has not expired.

For example, if your visa allows you to enter Australia multiple times (with a maximum stay on each entry), you must only remain in Australia for that maximum stay period (usually 3 months).

Therefore, if your visa is valid until 30 June 2023, but your last entry into Australia was on 1 July 2023, you will overstay your visa if you remain in Australia on 1 October 2023 without holding another substantive visa or a bridging visa.

If your visa has expired whilst you are still in Australia, you are still able to depart.

However, if you do not depart after your visa has expired, you become an ‘unlawful non-citizen’.

 

What happens if your overstay your visa in Australia?

 

Overstaying a visa is a breach of Australia’s immigration laws, and the consequences can be severe.

The Australian Border Force undertakes regular visa compliance activities ensuring visa holders are complying with their obligations.

If you are found to be an unlawful non-citizen, you may be at risk of:

• being detained and deported;
• having to pay the Government for the cost of removing you; and/or
• be banned from returning to Australia for up to 3 years.

If you remain in Australia more than 28 days after your visa expires, you will automatically receive a re-entry ban of up to 3 years.

This cannot be removed unless there are compassionate or compelling circumstances.

Although the re-entry ban does not prevent you from seeking a permanent visa, the Department may consider your immigration history when making future immigration decisions.

 

Visa Extensions & Options

 

Working Holiday Visas

For those on a Working Holiday Visa, it’s possible to extend your stay by applying for a second or third-year visa under specific conditions.

Engaging in specified work in regional areas could make you eligible for an extension.

It’s important to ensure you meet the requirements before applying.

 

Student Visas

If you’re in Australia on a student visa, you might have the opportunity to extend your stay by continuing your studies or pursuing further qualifications.

Many institutions offer pathways for students to progress to higher levels of education, granting an extended visa duration to complete these programs.

 

The Legalities of Visa Extensions

 

Timely Applications

When seeking a visa extension, timing is crucial.

Apply well before your current visa expires to avoid falling into the overstay category.

Generally, the Department appreciates proactive applicants who follow the rules and adhere to deadlines.

 

Documentation & Eligibility

Ensure that you have all the necessary documents and meet the eligibility criteria before applying for a visa extension.

Incomplete applications or lacking documentation could lead to delays or rejections.

 

Seek Professional Guidance

 

It can be challenging to navigate Australia’s complicated migration laws.

Engaging a registered migration agent can provide valuable assistance in understanding your visa options, eligibility criteria, and the application process.

They can help increase your chances of successfully extending your stay without encountering legal issues.

 

Community Status Resolution Service

 

The Department has also implemented a service that provides people who have overstayed their visas an opportunity to re-engage and resolve their immigration status as an alternative to immigration deportation.

The Department will grant you a bridging visa to allow you to remain in Australia temporarily until it has been resolved.

 

Contact Us

 

For professional consultation on the consequences of overstaying your visa and your next steps, contact Bambrick Legal today:

• Schedule a professional consultation with our specialists here
• Call us on 08 8362 5269
• Like us on Facebook
• Follow us on LinkedIn

Please note: Our migration and citizenship consultations are provided on a fee basis.

Related Blog – Understanding the Definition of a Dependent