Key points
- Any non-citizen in Australia is required to have a valid visa.
- People overstaying their visa become unlawful non-citizens and can be detained and deported from Australia.
- If someone overstays their visa by more than 28 days, they may face a three-year exclusion period.
Giacomo*, a 25-year-old Italian carpenter, came to Australia on a Working Holiday Visa in 2018 and then got a student visa.
Later, he found an employer who sponsored him for a Temporary Skill Shortage visa.
Once Giacomo submitted his 482 visa application, he received a Bridging Visa A. But things didn’t go as planned.
I applied for a sponsorship visa in November 2019, and then I entered a bridging visa for the sponsorship. In May, when COVID arrived, I lost my job, so I lost my sponsorship.
He lost his job at the start of the COVID-19 pandemic, and his employer withdrew his visa sponsorship.
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What happens when someone decides to stay in Australia without a visa?
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The Department of Home Affairs sent Giacomo a notice saying that he had 35 days to withdraw his 482 Visa application and apply for another visa or leave the country.
He then applied for a visitor visa with the help of a migration agent, but it was refused because the application was made more than 28 days after the expiry of his student visa, which was the last substantive visa he held. He has appealed the decision.
*Giacomo worked as a carpenter in Sydney. Source: Anna Shvets/Pexels
Unlawful non-citizens
Emanuela Canini, a migration agent at Migration World, says most people in Australia are here legally with a visa, like Giacomo.
However, sometimes she also sees clients without a visa because their visa expired before they could apply for another visa.
Usually, most of the people who let their visas expire are mainly visitor visa holders but also students.
She says this can happen inadvertently, or at times, even knowingly.
"In my experience, there are also some who are on a working holiday visa who and don’t understand when the second working holiday visa starts and consequently miss the visa end date."
Ms Canini says that some people hold the erroneous belief that they have 28 days to leave Australia after the visa expiry.
Source: James Russell/Pixabay
It’s not true. When the visa expires, it expires.
She says as soon as someone's visa expires and if they are still in Australia, they become an unlawful non-citizen. Such a person can be detained and deported from Australia.
Departing Australia with an expired visa
Migration Agent and Accredited Lawyer Alessia Comandini from Comandini Migration Services says if someone finds their visa has expired, a departure can be organised with the Department of Home Affairs by requesting a Bridging Visa E which allows them to have a lawful status for the time they are in the country before their departure.
"With this bridging visa E, they will be granted time to legally leave the country, and they will avoid any detrimental consequences like being detained at the airport.”
Source: Victor Freitas/Pexels
If a person has overstayed their visa by less than 28 days, they have more options.
Ms Comandini says it may be possible to apply for a partner or student visa or a COVID-19 Pandemic event visa.
Three-year exclusion period
However, if a person has overstayed their visa by more than 28 days without resolving the unlawful visa status, their options become very limited.
In some cases, they may face a three-year exclusion period during which they will not be granted another visa, explains Ms Comandini.
If you remained in Australia illegally for more than 28 days, any future application for an Australian visa will be subject to an exclusion period.
"This means that you 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 you left Australia voluntarily."
The three-year exclusion period starts from the day of departure from Australia.
It applies to someone who did not resolve their unlawful non-citizen status within 28 days and leaves Australia as an unlawful non-citizen or while holding a bridging visa C, D or E.
So it’s crucial to understand when the visa expires and then calculate the 28-day period.
So, how can one avoid the consequences of being an unlawful non-citizen in Australia?
Passport visa Source: Getty Images/belterz
The best thing is to pay attention to the visa expiry date when granted, says Ms Canini.
The visa expiry date is mentioned in the visa grant letter. You can also check it on the Department of Home Affairs' VEVO portal by entering your passport and visa information.
Under circumstances where someone has a well-founded fear of persecution in their country, they can apply for a protection visa in Australia even after their visa has expired.
For those who can't afford legal representation, help may be available at these places:
NSW
Refugee Advice and Casework Service (RACS) (02) 8355 7227
Immigration Advice and Rights Centre (IARC) (02) 8234 0700
Legal Aid NSW (02) 9219 5790
Victoria
Refugee Legal (03) 9413 0100
Asylum Seeker Resource Centre (ASRC) (03) 9326 6066
Victoria Legal Aid (VLA) 1300 792 387
Queensland
Refugee And Immigration Legal Service (RAILS) (07) 3846 930
Western Australia
Circle Green Community Legal (08) 6148 3636
*Not his real name
