I have overstayed my visa in Australia. Can I now lodge a partner visa in Australia?

I accidentally overstayed on my Australian visa. I was unlawful for 10 months and now hold a Bridging Visa E (BVE). I am currently in a relationship with an Australian citizen and she wishes to sponsor me on a spouse visa.

  1. Can I remain in Australia and lodge the partner visa here or must I leave the country and apply for the partner visa offshore?   
  2. If I lodge the partner visa offshore, can I apply for a visitor visa to spend time with my partner in Australian while I wait for the partner visa to be processed?

Applying for a partner visa in Australia when you are unlawful or hold a Bridging Visa

You may potentially be granted a partner visa onshore if:

  1. You apply for the partner visa less than 28 days after your substantive visa expired, and
  2. The reason you no longer hold a substantive visa was for reasons outside of your control, e.g. because of an illness or the Department provided you with the wrong visa expiry date), and
  3. There are compelling reasons for granting the visa, and
  4. You substantially complied with the conditions on your substantive visa or bridging visa, and
  5. You would have been entitled to be granted the partner visa if you have applied for it on the last day you held your substantive visa. E.g. If you entered into the relationship after your substantive visa expired you would not meet this requirement, and
  6. Your last substantive visa did not have a ‘no further stay condition’ on it.

If all these conditions are satisfied and  you meet the criteria for the partner visa you may be granted the partner visa onshore.  If you do not meet all of the above conditions (for example it is more than 28 days since you held your last substantive visa) then you must demonstrate that there are compelling reasons for the partner visa to be granted onshore.

Can I apply for a visitor visa to Australia to spend time with my Australian partner while I wait for my offshore partner visa to be processed?

Visiting your spouse in Australia is a legitimate use of the visitor visa program and provisions exist in migration policy to facilitate short visits to Australia for applicants who have lodged a partner visa application outside of Australia, particularly if any of the following six scenarios apply:

  • you meet the eligibility requirements of the visitor visa
  • you and your partner have been together for a significant period
  • you and your partner are well established in their home away from Australia
  • there are no concerns about the genuineness of the relationship or the validity of the marriage
  • you wish to travel to Australia for a short visit for a special occasion
  • there are compelling circumstances that justify the granting of a visitor visa or it would be in the best interests of a child to do so.

Having an Australian partner is not alone sufficient to guarantee that you will be granted a visitor visa.  You must satisfy Immigration that you meet the eligibility requirements of the visitor visa and that you are a genuine visitor and intend to leave Australia at the end of your temporary stay.  This may involve an assessment of the circumstances in your home country and your incentives to depart Australia at the conclusion of your visa.

If you were previously in Australia and departed from Australia as an unlawful non citizen or the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa, you may be subject to an exclusion period for 3 years unless you can satisfy the Department that in your particular case there are reasons to justify the granting of the visitor visa within 3 years after your departure.  To justify the granting of the visa within 3 years you must show that there are compelling circumstances that affect the interests of Australia, or that compassionate or compelling circumstances exist that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.  The three-year exclusion period does not apply to offshore partner visa applications.

This information is to be taken as a guide only and the information is current at the time of writing. It does not substitute for comprehensive legal advice. If you are currently in Australia without a substantive visa and wish to apply for a partner visa onshore, or you wish to return to Australia and are affected by the three-year exclusion period, it in your best interest to seek legal advice from a qualified immigration lawyer. Contact our office on 1300 230 313 to speak to one of our specialised Immigration Lawyers who can provide you with legal advice specific to your circumstances.

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