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Visa Breaches

 

In Australia visas come with rules which must be meet or adhered to. Failure to meet or adhere to these rules can result in deportation, visa refusal and visa cancellation.

The information provided below should be used as a guide only. If you are experiencing legal problems related to your visa or any other type of legal issues we encourage you to contact us.

Overstaying your visa

When you apply for a visa to come to Australia, you agree to comply with all of the conditions of that visa, including the requirement that you leave Australia before your visa expires. If you remain in Australia after your visa has expired you will be considered an unlawful non-citizen. An unlawful non-citizen can be detained and then deported from Australia and the Australian government can recover the costs of doing so from them.

If you are in Australia and your visa will be expiring soon you should resolve your immigration status before your current visa expires. You may be able to extend your current visa, apply for a bridging visa or apply for a different class of visa, depending upon the reasons why you want to extend your stay in Australia.

Overstaying Your Visa less than 28 days

You may be able to apply to remain in Australia because of your relationship with an Australian citizen or permanent resident if your visa has been expired for less than 28 days and provided you can meet certain other criteria. 

Overstaying Your Visa more than 28 days

If you remain in Australia illegally for more than 28 days after your visa has expired, any future application for an Australian visa will be subject to an exclusion period. That 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. Further, even after this three year period has finished, you will not be able to get another visa unless you repay any debts you owe to the Commonwealth Government. This will include the costs of detaining you and removing you from the country if you have not already paid them. However, even if you have overstayed your visa by more than 28 days you may still have other options available to you. 

Visa Cancellations Under Section 116 of the Migration Act

A visa can be cancelled in the following circumstances:

  1. Breach of visa conditions;
  2. Failure to comply with visa conditions;
  3. Purposely providing incorrect or bogus information; or
  4. For the health, safety and good order of a segment of the Australian community.

When a visa is cancelled under Section 116, the visa holder generally has the right to internally request the Minister of Home Affairs to revoke the cancellation of the visa (Migration Act, Section 501). This in effect provides the visa holder with procedural fairness and the opportunity to be heard as to why the visa should not be cancelled.

Cancellations based on criminal charges

A visa can be cancelled where the holder poses a risk to the health, safety or good order of the Australian community, or to an individual within the Australian community. There has been a growing number of visa cancellations based on criminal charges that are yet to be finalised in state or territory criminal sittings. Many of these cancellations have been in relation to allegations of domestic violence. When a visa is cancelled under Section 116(1)(e) of the Migration Act, the holder does not have the right to request the revocation of the cancellation, however, the holder can request a Merits Review by the Administrative Appeals Tribunal.

Deportation

Deportation is the process used for permanent residents and certain New Zealand citizens who are not Australian citizens.

You can be deported if:

  • You have been convicted of certain serious crimes and received a prison sentence; or
  • You are considered to be a threat to the security of Australia. Before a deportation order is made on these grounds, you will be given the opportunity to appeal against your adverse security assessment.

Deportation process

If a deportation order has been issued you may be arrested without a warrant. If you are not the person named in the deportation order, you must say so within 48 hours. You will then be taken before a court for that question to be decided.

If you are serving a term of imprisonment, details of your deportation will be finalised before your release from prison. You will usually be taken straight from prison to the airport and must leave immediately. Otherwise, you will be held in immigration detention prior to being taken to the airport as soon as is practicable.

You will have to pay the costs of your deportation.

Will My Criminal Matter Affect My Visa?

If you are living in Australia as a non-citizen on a temporary or permanent visa and you are found guilty of a crime, this may affect your visa. Depending on the sentence you receive and how long you have been living in Australia, together with a range of other factors, your visa may be cancelled, and you may be deported. This may be done under Section 201 of the Migration Act or under Section 501.

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