Australian partner visa answers

Overstaying an expired visa and how that affects your application

Thursday Answers are a response to questions submitted by readers on our regular Ask Mondays posts.

Every Monday I ask people to send in their questions and concerns and I select one to answer. In doing this, I hope you will see that a) you’re not alone in this, b) there are no stupid questions and c) we’re all here to help!

Today, we’re going to talk about the consequences of overstaying your visa and how that will affect a partner visa application. The below question was submitted to me as part of our Ask Mondays posts:

Q. My friend has overstayed his visa for a year now. He is in a relationship with Australian citizen for 6 months and the girlfriend wants him to apply for defacto visa. Is it possible to apply in this situation?

This is a minefield. I recommend that your friend seek proper legal advice regarding his situation because overstaying visas have serious consequences for his current situation and his future visa applications.

Overstaying visas can result in a) immediate removal b) immigration detention c) bridging visa C, D, E c) no entry ban for a multiple of years d) bar on applying for further visas.

I won’t speak to your friend’s situation but I will point you to a case that was recently ruled not in favour of the applicant: Tour (Migration) [2018] AATA 112 (12 January 2018) 

I’ll briefly summarise it below.

The applicant overstayed his visa and lived illegally in Australia for a number of years before meeting his sponsor. They got married and they applied for a partner visa but because the applicant didn’t have a substantive visa when he applied (he didn’t have a bridging visa, he simply stayed longer than his visa allowed and worked illegally) the partner visa application was denied. The applicant appealed and the Administrative Appeals Tribunal (AAT) upheld the decision.

The AAT considered a range of reasons including that:

  • the sponsor was pregnant with the applicant’s child;
  • the sponsor had health issues and relied on the applicant for support;
  • the applicant was a father figure to the sponsor’s child by a first marriage;
  • the interfaith marriage that would not ‘survive’ in the applicant’s home country;

For a full list of the reasons, I recommend you read the case.

What we can take away from this case is that even a child and the support that the applicant provides for the sponsor are not compelling enough reasons for the AAT to grant a partner visa application.

This decision doesn’t mean that the applicant cannot apply for a partner visa again, it just means that the applicant needs to be offshore to do so.

So, my recommendation is still for your friend to seek legal advice about his situation.

That concludes this week’s Thursday Answers.

Until next time,

Fiona

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