On 20 March 2020, the Australian Government closed its borders for non-essential travel in response to the Covid-19 pandemic in order to contain and prevent the escalation of the virus within the country. Many have shared in the adversity caused by heightened travel restrictions and the stringent closure of the nation’s borders, particularly those with only temporary residence and are therefore left with limited options in response to these constraints. Temporary visitors who arrived in Australia prior to the closure on 20 March, namely those on an electronic travel authority (subclass 601) visa or an eVisitor (subclass 651) visa, will surpass the date of required departure come 20 June. As Australia is not the only country to have closed its borders and suspend incoming travel, many visitor visa holders in Australia were prevented from returning to the respective countries of origin. Those unable to depart would be required to lodge an application for a second visitor visa in order to lawfully extend their stay in Australia until the option to return becomes available, or even viable.
Consequences of Unlawfulness caused by expired Visitor Visas
If you are in Australia and your visa is soon to expire, you should seek to have your immigration status resolved immediately to avoid any future complications. Overstaying your visa and remaining in the country unlawfully may have significant consequences should you wish to return to Australia in the future. In fact, by overstaying your visa by more than 28 days, any future applications you make will be subject to an exclusion period which prevents you from applying for or being granted a visa to enter Australia for a 3 year period. It is imperative that you seek legal advise should this situation occur.
If you remain in Australia beyond the expiration date of your visitor visa, you will be considered an unlawful non-citizen which presents a variety of undesirable consequences. In compliance with Australian Migration law, an unlawful non-citizen must be detained and accordingly may be held in an immigration detention facility or a similar facility based on the apparent risk the unlawful non-citizen presents. It is important to recognise, however, that the purpose and function of immigration detention is more administrative and not designed to operate punitively. It was established in an effort to assist the Department of Home Affairs and Australian Border Force in managing the temporary entry and permanent migration program.
408 visa (Covid-19 pandemic)
The Department of Home Affairs has devised a new and unique visa substream amid the Covid-19 pandemic to enable temporary visa holders the opportunity to lawfully extend their stay in Australia. The Temporary Activity (subclass 408) visa was introduced by the Department as a measure of last resort for those currently stranded in Australia due to the travel restrictions imposed by the Australian Government. In response to global travel constraints, the Department released a new substream under the subclass 408 visa in which ‘Covid-19 pandemic’ was added to the Australian Government Endorsed Events to permit the extended stay of temporary visa holders in Australia until the outbreak has subsided.
This specific substream allows those who were the holder of a temporary visa to make a valid application for a subclass 408 visa within 28 days of its expiration. This may be of particular utility to applicants who arrived in Australia on an eVisitor visa or ETA and are unable to depart the country despite the requirement to do so within 3 months of arrival. If you arrived in Australia on a visitor visa which has now expired and you are unable to depart the country due to the Covid-19 pandemic, then you are not prevented from making a valid application for a subclass 408 visa, provided that the application has been submitted within 28 days after your visitor visa had expired. If your visitor visa has recently expired and you are still currently in Australia, please seek the assistance of our registered migration agents who can assist you throughout the process to ensure that your immigration is resolved in a timely and professional manner.
The Schedule 3 criteria of the Migration Act 1954 permits you to lodge a valid onshore partner visa application within 28 days after the cessation of your substantive visa on the basis of a genuine and continuing relationship with Australian citizen or permanent resident. This provides an avenue for applicants who would otherwise be ineligible to apply for and be granted a partner visa while onshore in Australia. The Schedule 3 criteria is enlivened only upon the applicant submitting a partner visa application within 28 days after they ceased to hold a substantive visa and is subject to meeting certain and specific criteria contained in this Schedule in addition to those imposed under the partner visa regime. These criteria require a higher threshold and must be addressed and successfully established in order to be granted a partner visa onshore that was applied for within the 28 day period as specified above.
Partner visas are a costly and complex process so this avenue should not be used as a method of extending your stay in Australia if you are not in a genuine relationship with an Australian. If you believe that you are eligible for a partner visa, we advise that you contact No Borders Migration for assistance, particularly given the 28 day timeframe to apply.
If your visa has recently expired and you are unable to depart Australia due to the current pandemic, please act quick and contact No Borders Migration Advocates!
Call 1300 066 267 to book a free consultation with No Borders Migration Agents