Covid-19 and your Visa. The pandemic has caused many onshore visa holders to have to apply for another visa to remain lawful in Australia whilst travel restrictions are in place and their current visa is due to, or has expired.
Many Migrants are not seeking professional advice and applying directly for a Bridging Visa E when their visa expires based on poor advice, which may be the only alternative, however this choice may also limit the them for future visa applications, and also restrict their ability to work, and may also restrict their ability to depart and return to Australia when borders re-open.
We recommend that you contact a Registered Migration Agent to seek clarifications on what your options are due to Covid-19 and your Visa expiring.
If your visa has expired you may be able to apply for another visa and not a Bridging Visa which is not a substantive visa and can be restrictive.
Schedule 3 of the Migration Regulations lists the additional criteria which must be satisfied by persons wishing to apply for visas, but who are in Australia unlawfully as a result of their visa expiring. These are Schedule 3 Criterion 3001 and 3002 of the Migration Regulations, and impose time restrictions in which you are eligible to apply for a visa after your visa may have expired (the “relevant day”).
For criterion 3001, the time limit after the ‘relevant day’ is 28 days, i.e. the person may still validly make a visa application up to 28 days after the person has become unlawful.
For criterion 3002, the time limit after the ‘relevant day’ is 12 months, i.e. the person may still validly make a visa application up to 12 months after the person has become unlawful.
Whether a person is subject to criterion 3001 or 3002 will depend on the type of visa he/she is applying for and a Registered Migration Agent can assist you with understanding whether you are able, after your visa expires, to apply for another visa. We recommend seeking advice before this occurs though.
- a visitor to Australia applying for a tourist visa extension (600 visa) would be subject to criterion 3001, meaning they must apply for the visa within 28 days after their last substantive visa had expired.
Despite what Schedule 3 may say about the ‘relevant day’, these time limits can be overridden by restrictions imposed by the Migration Act. For example, a person in Australia may have only become unlawful 2 weeks ago (and hence well inside the time limit of the ‘relevant day’, whether it be 28 days under 3001, or 12 months under 3002), but if that person was caught by Immigration Compliance and detained, he/she would be subject to section 195 of the Migration Act, which says he/she only has 2 working days (plus 5 if he sought an extension) to lodge an application.
Often advice is given about Covid-19 and your Visa is that you should apply for a Bridging Visa E as soon as you become an unlawful non-citizen, if your substantive visa has ceased.
This is incorrect advice and depends on the ‘relevant day’ your visa has expired and the visa you can apply for, if eligible.
If your visa due to Covid-19 is due to expire or expired, we recommend seeking Professional advice from a Registered Migration Agent as soon as possible to avoid unnecessary complications in the future.