Unlawfuls and Partner Visa Application
When a person’s substantive visa expires and they do not hold a valid visa to remain in Australia, they are deemed by Section 14 of the Migration Act as unlawful non-citizen.
However for someone who may have overstayed and are in a relationship with an Australian citizen, permanent resident or eligible New Zealand citizen, they may be able to lodge a partner visa application in Australia.
To lodge onshore the applicant must meet particular criteria and not everyone can make these applications.
- If an applicant has had a partner visa refused onshore previously and now wishes to apply again, they will be prevented from doing so by section 48 of the Migration Act.
- If someone has arrived in Australia and on their last entry they had condition ‘8503’ attached they will also be prevented from applying for a partner visa onshore.
- Schedule 3 of the Migration Regulations contains criteria relating to applicants without substantive visas or who may be on a bridging visa and now wish to make further visa application in Australia. To be eligible to lodge onshore they must meet the relevant criteria contained in Schedule 3 otherwise the application will not be successful.
For example, In the partner visa the criteria asks the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
The applicant would need to satisfy one of these criteria. In most cases it will schedule 3004 that would need to be satisfied. This would require the applicant to show the Department that they became unlawful due to circumstances outside their control and that they have compelling reasons for the grant of the visa.
If these circumstances can be proven they will be then be eligible to apply for a partner visa onshore and provided that they meet all other criteria, be granted either the provisional or permanent partner visa.
It is important to remember that alongside the usual evidence to show that they meet the requirements, the applicant should also include a statutory declaration describing why they became unlawful, why they continued to remain unlawful and their contrition. This would address in part the “character” issues that may have followed the applicant since becoming unlawful.