Partner Visa After Overstaying

A partner visa after overstaying is possible in Australia, but it is never automatic. A person who has stayed beyond the end of their visa can still lodge the combined Subclass 820 and Subclass 801 partner visa application while they are in Australia. Whether a partner visa after overstaying can actually be granted depends on the Schedule 3 criteria in the Migration Regulations 1994 and, for most overstayers, on whether the Department is satisfied that there are compelling reasons for not applying them.

This guide is written for the person who has overstayed and wants to know where they stand. It explains what overstaying means in law, the risk of detention and removal, why lodging a valid application matters, how Schedule 3 and compelling reasons work, how the length and cause of the overstay are viewed, and how the position differs after a student visa, a visitor visa, a working holiday visa or a refusal. It also explains when leaving Australia and applying offshore may be the better course. For an overview of every partner visa pathway, see our complete guide to partner visas in Australia.

Can you get a partner visa after overstaying in Australia?

Yes, you can apply for a partner visa after overstaying in Australia, and the application can be validly lodged even though you no longer hold a visa. The difficulty is not lodging. The difficulty is the grant. Because you did not hold a substantive visa when you applied, the Subclass 820 criteria require you to satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

Many people believe that an overstayer cannot apply for a partner visa at all. That is wrong. Others believe that marrying an Australian citizen fixes an overstay automatically. That is also wrong. The truth sits between those two beliefs. A partner visa after overstaying is a legal case that has to be built and proved, and the relationship is only one part of it.

The combined application is lodged for the temporary Subclass 820 visa and the permanent Subclass 801 visa. The genuine relationship test, the sponsorship and the health and character requirements all still apply. Schedule 3 is an additional layer that applies because of the applicant's status. Our article on the Schedule 3 criteria for partner visa applicants who are unlawful explains each criterion in detail, and this guide focuses on how they apply to someone who has overstayed.

Who this guide is for

This guide is for a person in Australia whose visa has expired or been cancelled, who is in a genuine married or de facto relationship with an Australian citizen, Australian permanent resident or eligible New Zealand citizen, and who wants to know whether a partner visa after overstaying is realistic. It is also for the Australian partner, who is usually the person most anxious about what happens next.

What does overstaying a visa mean under Australian law?

Overstaying means remaining in Australia after your visa has ceased, so that you no longer hold any visa and are an unlawful non-citizen under section 14 of the Migration Act 1958. The law does not use the word "overstayer". It divides non-citizens in Australia into lawful non-citizens, who hold a visa that is in effect, and unlawful non-citizens, who do not.

A person usually becomes unlawful in one of these ways:

• Their visa expired and they did not lodge a valid application for another visa before it ended.
• Their visa was cancelled and no other visa was granted.
• They held a bridging visa that ended, for example when a review was finally decided, and no further visa was granted.
• They lodged an application that turned out to be invalid, so no bridging visa was granted when the substantive visa ended.

The last situation catches many people by surprise. A person may have lodged something with the Department in good faith and believed they were protected. If the application was not valid, it did not attract a bridging visa, and they may have been unlawful for months without knowing. That history matters when a partner visa after overstaying is later assessed, because the reason the person became unlawful is one of the matters Schedule 3 looks at.

Checking your status before anything else

The first step is to establish the facts. The Visa Entitlement Verification Online (VEVO) record, the last visa grant notice and any refusal or cancellation letters show what visa was last held, when it ceased and what conditions were attached. Our article on bridging visas in Australia explains how bridging visas start and end, which is often where an overstay begins.

The risk of detention and removal for someone who has overstayed

A person who is an unlawful non-citizen is liable to be detained under section 189 of the Migration Act 1958 and, in general terms, to be removed from Australia if they do not hold a visa and have no application or review that allows them to remain. That risk exists from the day the visa ceases. It does not disappear because the person is in a relationship with an Australian citizen.

In practice, many people who have overstayed are located through ordinary contact with government services, an employer check, a traffic stop or a tip-off. Once a person is detained, the options narrow. Some applications can still be made from detention, and shorter time limits apply to some review rights for people in immigration detention. The safer course is to deal with the overstay before compliance officers deal with it.

This is not a reason to panic. It is a reason to act. A person who is considering a partner visa after overstaying should obtain advice and, where an onshore application is appropriate, lodge a valid application as soon as the evidence allows. Our guide to urgent immigration lawyer advice explains what to have ready for an urgent consultation.

Working while unlawful

An unlawful non-citizen has no permission to work. Work done while unlawful can be raised later when the Department considers the applicant's compliance history. It is better to stop unlawful work and disclose it honestly than to continue and have it discovered.

Why lodging a valid partner visa after overstaying matters

Lodging a valid partner visa after overstaying matters because a valid application is what allows a bridging visa to be considered, and a bridging visa is what makes the applicant lawful again while the application is decided. An invalid application does none of those things.

A person who held a substantive visa when they applied generally receives a Bridging Visa A. A person who has overstayed did not hold a substantive visa, so they will not receive a Bridging Visa A. Depending on their circumstances, they may be granted a Bridging Visa E or, in some situations, a Bridging Visa C, linked to the partner visa application. The bridging visa conditions, including work conditions, are shown on the grant notice. Our article on Bridging Visa A work rights, conditions and travel explains why the Bridging Visa A is not available in this situation.

What makes the application valid

A partner visa application is valid only if it meets the validity requirements in Schedule 1 to the Migration Regulations 1994. The applicant must be in Australia at lodgement, the correct form and charge must be used, and the sponsor must be eligible to sponsor. Two further issues are common for people who have overstayed:

• Condition 8503 (No Further Stay) on the last visa held.
• Section 48 of the Migration Act 1958, if a visa was refused or cancelled since the applicant last entered Australia.

Both are explained later in this guide. If either applies and is not dealt with properly, the partner visa after overstaying may be invalid from the start.

The sponsor and the relationship requirements

Overstaying does not change the relationship requirements. The couple must be married or in a de facto relationship, the relationship must be genuine and continuing, and the sponsor must be eligible. Our guides to the de facto partner visa and the 12-month rule and to partner visa sponsorship limitations cover those requirements. Same-sex couples are assessed on the same terms, and our page on the LGBTI partner visa explains the issues that sometimes arise.

Common misconceptions about a partner visa after overstaying

The most common misconceptions about a partner visa after overstaying are that it is impossible, that marriage fixes the overstay, and that waiting makes the position better. Each of these beliefs leads people to make decisions that harm their case.

"An overstayer cannot apply for a partner visa"

This is wrong. The Partner (Subclass 820/801) application can be validly lodged by a person who holds no visa, provided the validity requirements are met. Schedule 3 is a criterion for grant, not a bar to lodging. People who believe they cannot apply often stay unlawful for years longer than they need to, and the extra time then counts against them.

"Getting married solves the problem"

This is also wrong. Marriage may establish the relationship, but it does not satisfy Schedule 3 and it is not, by itself, a compelling reason. Department policy states that a genuine relationship and the hardship of separation alone are generally not compelling reasons, because every partner applicant has a relationship. A partner visa after overstaying needs something more, proved by evidence.

"Having a child guarantees the visa"

No, an Australian citizen child does not guarantee the grant of a partner visa after overstaying. The best interests of a child are a relevant and often weighty consideration, and the Tribunal has remitted matters where there were Australian citizen children of the relationship. But the decision maker must still weigh all the circumstances, including the applicant's immigration history and the reasons for the overstay.

"It is better to wait until the case is stronger"

Usually not. Every additional month of unlawful stay adds to the period that has to be explained, and the applicant remains liable to detention in the meantime. Because the decision maker considers circumstances up to the time of decision, evidence that develops after lodgement can generally be added later. The better course is usually to lodge a valid application as soon as the relationship evidence allows, and to keep building the compelling reasons case afterwards.

The Australian partner's role when the applicant has overstayed

The Australian partner plays a central role in a partner visa after overstaying, because they are the sponsor, a key witness to the relationship and often the person whose circumstances provide the compelling reasons. The sponsor's eligibility, history and situation are examined as closely as the applicant's.

The sponsor must be an Australian citizen, Australian permanent resident or eligible New Zealand citizen, and must meet the sponsorship requirements, including the limitation on sponsoring more than one partner. Our article on when a sponsor cannot sponsor a partner visa explains those rules. Where section 48 applies, the sponsor's completed and signed sponsorship form must be lodged with the application itself, not later.

The sponsor's own circumstances are often the strongest part of the compelling reasons case. A sponsor who is pregnant, seriously ill, caring for children, or dependent on the applicant for daily support may provide the reason why separation would be unreasonable. Those circumstances must be proved with independent evidence, such as medical reports, not only described in a statement. A sponsor who wants to understand the application from their side can read our Subclass 820 visa explainer and our guide to Subclass 820 vs Subclass 801.

Where our partner visa after overstaying clients are located

My Migration Lawyers acts for people seeking a partner visa after overstaying throughout Australia, and every consultation is conducted by video. Couples in New South Wales can read about our partner visa lawyers in Sydney and our partner visa lawyers in Parramatta. In Victoria and Queensland, we act through our partner visa lawyers in Melbourne, Brisbane and the Gold Coast. Couples elsewhere can read about our partner visa lawyers in Perth, Adelaide, Canberra and Hobart. The rules for a partner visa after overstaying are the same in every state and territory. What changes the outcome is the applicant's own history.

How Schedule 3 applies to a partner visa after overstaying

Schedule 3 applies to a partner visa after overstaying because subparagraph 820.211(2)(d)(ii) of the Migration Regulations 1994 requires an applicant who did not hold a substantive visa at the time of application to satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. Every person who has overstayed is in this category.

Criterion 3001: the timing of the application

Criterion 3001 requires the application to be made within a short period after the applicant last held a substantive visa. A person who lodges very soon after their visa ended may meet criterion 3001. A person who has been unlawful for longer will not. Most people seeking a partner visa after overstaying do not meet criterion 3001, which is why the compelling reasons pathway matters so much.

Criterion 3003: a legacy criterion

Criterion 3003 deals mainly with people who became unlawful before 1 September 1994. It rarely affects applicants today, but it is still checked, because it forms part of the Schedule 3 test in the Subclass 820 criteria.

Criterion 3004: the substantive test

Criterion 3004 applies to people who ceased to hold a substantive visa, or entered Australia unlawfully, on or after 1 September 1994. In general terms, it requires the decision maker to be satisfied that:

• the reasons the applicant became unlawful were beyond their control;
• there are compelling reasons for granting the visa;
• the applicant substantially complied with the conditions of their last substantive visa and any later bridging visa; and
• the applicant would have been entitled to the visa if they had applied immediately before becoming unlawful.

Each element must be met. A person who simply chose to stay after their visa ended will usually fail the first element, because staying was within their control. That is why criterion 3004 is rarely met by someone who has overstayed for a long time.

Not meeting Schedule 3 does not make the application invalid

Schedule 3 is a criterion for grant, not a validity requirement. A person who cannot meet criteria 3001, 3003 and 3004 can still lodge a valid partner visa after overstaying. The application cannot be granted, however, unless those criteria are met or the Minister is satisfied there are compelling reasons for not applying them. Our article on the Schedule 3 partner visa waiver explains how the waiver fits within the Subclass 820 criteria, and our Schedule 3 waiver service page explains how My Migration Lawyers prepares those cases.

Compelling reasons for a partner visa after overstaying

Compelling reasons are circumstances that persuade the decision maker that Schedule 3 should not be applied to the applicant, and they are the deciding issue in most partner visa after overstaying cases. The Migration Regulations 1994 do not define compelling reasons, so each case is assessed on its own facts.

Circumstances up to the time of decision count

In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the Full Federal Court held that the decision maker must consider all of the applicant's circumstances as known up to the time of the decision. Compelling reasons that arise after lodgement, such as the birth of a child, therefore count. A partner visa after overstaying is not frozen at the date of lodgement. The case can and should be updated as circumstances change.

What Department policy says

The Department's policy explains that the waiver is intended for genuinely compelling circumstances. It is not meant to advantage people who failed to comply with their visa conditions, who manipulated their circumstances, or who can leave Australia and apply offshore. As a general rule, a genuine relationship and the hardship of separation are not, on their own, compelling reasons, because every partner applicant has a relationship and every couple would suffer if separated.

On the other hand, circumstances beyond the applicant's control that caused or prolonged the unlawful stay, such as severe illness or incapacity, are reasonably accepted as compelling. A long period of unlawful stay with little effort to regularise status weighs against the applicant.

Matters the Tribunal has treated as compelling

Decisions in which the Tribunal remitted partner visa matters to the Department for reconsideration show the kinds of circumstances that have been considered compelling. They include Australian citizen children of the relationship, a pregnant sponsor, the sponsor's serious illness or mental health and dependence on the applicant, the applicant's care of the sponsor's children, family health issues and bereavement, financial hardship, long-standing relationships, travel restrictions, and the circumstances in which the visa lapsed. The best interests of any children affected are a relevant consideration.

None of these is a formula. A partner visa after overstaying succeeds or fails on whether the specific circumstances are proved by evidence and presented against the policy concerns. Our guides to partner visa relationship evidence and to preparing evidence of a genuine relationship cover the relationship side, which still has to be proved separately.

How the length of the overstay affects a partner visa after overstaying

The length of the overstay matters because a long period of unlawful stay with little effort to regularise status weighs against the applicant, but a long overstay does not automatically defeat a partner visa after overstaying. What matters is the whole picture: why the person became unlawful, why they stayed, what they did about it, and what compelling reasons exist now.

Several decisions in which the Tribunal remitted the matter to the Department for reconsideration involved long unlawful stays:

• In Singh (Migration) [2020] AATA 5271, the recorded issue was that the applicant had been an unlawful non-citizen for almost six years.
• In Hou (Migration) [2020] AATA 6018, the recorded issue was a lengthy period as an unlawful non-citizen.
• In Chi (Migration) [2019] AATA 6378, the recorded issues were unlawful residence for several years and financial hardship.
• In Kami (Migration) [2024] AATA 177, the recorded issue was a period of unlawful residence.

Those decisions do not mean that a long overstay is unimportant. They show that the Tribunal considers the length of the overstay together with all the other circumstances, rather than treating it as decisive on its own.

A short overstay

A short overstay is a different problem. In 1726263 (Migration) [2020] AATA 5621, the recorded issue was an application lodged a short time after the applicant's substantive visa expired, and the Tribunal remitted the matter to the Department for reconsideration. A person who has only recently overstayed should act immediately. The sooner a partner visa after overstaying is lodged, the fewer questions there are about why the applicant remained unlawful.

What the decision maker asks about the overstay

A decision maker assessing a partner visa after overstaying will usually want to understand:

• the date the last substantive visa ended and why no further visa was applied for;
• whether the applicant knew they were unlawful;
• whether the applicant tried to regularise their status, for example by contacting the Department or seeking advice;
• whether the applicant worked or breached other laws while unlawful; and
• why the applicant did not leave Australia and apply offshore.

Each answer must be truthful and consistent with the Department's records. Our guide to Form 80 explains why address, travel and employment history must match the immigration record.

Applying for a partner visa after overstaying a student visa

A former student can apply for a partner visa after overstaying a student visa, but the reason the student visa ended matters greatly. A student visa that simply expired is a different starting point from a student visa that was cancelled for breach of conditions.

Where a student visa was cancelled, the cancellation is part of the immigration history, and section 48 may apply, as explained below. A breach of student visa conditions, such as attendance or course progress, is also relevant to criterion 3004, which asks whether the applicant substantially complied with the conditions of their last substantive visa. In 1814675 (Migration) [2020] AATA 3017, the recorded issues were the cancellation of a student visa and a lengthy unlawful stay, together with the sponsor's mental health, and the Tribunal remitted the matter to the Department for reconsideration.

Students sometimes became unlawful after a refused student visa extension, or after relying on an education provider or adviser who did not lodge on time. Those facts may bear on whether the unlawfulness was beyond the applicant's control. Our page on visa cancellations explains how student visa cancellation works.

Applying for a partner visa after overstaying a visitor visa

A person can apply for a partner visa after overstaying a visitor visa, but condition 8503 (No Further Stay) must be checked first. Many visitor visas carry condition 8503, which generally prevents the holder from making a valid onshore partner visa application while they hold that visa unless the condition is waived.

Once the visitor visa has ceased, the person no longer holds a visa with that condition, and the position must be checked on the facts. Schedule 3 then applies. A person who deliberately let a visitor visa expire to get around condition 8503 should understand that Department policy treats manipulation of circumstances as a matter that weighs against a waiver of Schedule 3. Our article on whether you can apply for a Subclass 820 visa with condition 8503 explains the condition and its waiver.

The visitor visa application itself also matters. Statements made about the purpose of the visit, marital status and intention to return home are on the Department's record. Our guide to moving from a tourist visa to a partner visa in Australia explains why those statements should be reviewed before any partner visa is lodged.

Applying for a partner visa after overstaying a working holiday visa

A former working holiday maker can apply for a partner visa after overstaying a working holiday visa, and this is a common situation for couples who were waiting to reach the de facto relationship requirements. Couples often believe they must wait until the relationship has lasted long enough before they lodge, and the working holiday visa ends in the meantime.

That is often a mistake. The de facto requirements have exceptions, including registration of the relationship in an Australian state or territory, and a person who lodges while still holding the working holiday visa avoids Schedule 3 entirely. Our article on whether you really need 12 months of de facto relationship explains the exceptions. Where the working holiday visa has already ended, the application must address Schedule 3 and compelling reasons like any other partner visa after overstaying.

A partner visa after overstaying following a visa refusal

A person who has had a visa refused or cancelled since they last entered Australia, and who does not hold a substantive visa, is affected by section 48 of the Migration Act 1958. Section 48 limits the visas they can apply for in Australia to the classes prescribed in regulation 2.12. The Partner (Subclass 820/801) class is one of those classes, so a partner visa after overstaying remains available, but extra validity requirements apply.

Under Schedule 1 item 1124B(3)(e), a section 48 affected applicant must meet these requirements:

• The applicant must not have been refused a partner visa since they last entered Australia. Travel on a bridging visa does not reset this.
• The sponsor's completed and signed sponsorship form (Form 40SP) must be lodged with the application.
• Two statutory declarations must be lodged, each made by an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is not the partner, declaring that the couple are in a married or de facto relationship. Each must be made within a short period before the application.

If any of these is missing, the application is invalid. These are statutory declarations, not Form 888 statements, because the law requires them in that form. Schedule 3 still applies to a section 48 affected applicant who holds no substantive visa. Our article on applying for a partner visa after a visa refusal explains the section 48 position, and our page on visa refusals explains the review process.

When the refusal is still under review

A person whose visa was refused and who has applied to the Administrative Review Tribunal usually holds a bridging visa while the review is pending, and is not unlawful during that time. If the review ends and the decision is affirmed, the bridging visa will generally end shortly afterwards, and the person becomes unlawful if they do not leave or obtain another visa. The partner visa should be planned before that happens, not after. Our article on what to expect in an ART review after a visa refusal explains the review process, and our page on judicial review explains the court process that may follow.

When the earlier refusal was a partner visa

Where the applicant was refused a partner visa since last entering Australia, a fresh onshore partner visa application is generally not valid. The usual options are review of that refusal at the Tribunal, or an offshore application. Our page on partner visa refusals and our article on partner visa refusal appeal options explain those options.

Should you leave Australia and apply offshore instead?

Leaving Australia and applying offshore for a Subclass 309 visa avoids Schedule 3, but it is not a simple alternative to a partner visa after overstaying, because leaving can trigger exclusion periods and other consequences that may delay or prevent a later visa. The decision should be made with advice, before a flight is booked.

The offshore pathway is the Subclass 309 visa, followed by the permanent Subclass 100 visa. The applicant must be outside Australia when the application is lodged and when the Subclass 309 is granted. The Australian partner sponsors the application, and in offshore matters the client of My Migration Lawyers is that Australian sponsor.

What leaving can cost you

A person who leaves Australia after overstaying may face an exclusion period, during which certain visas cannot be granted. Whether an exclusion period applies depends on how long the person was unlawful, how they left Australia and whether they left voluntarily. A person who is removed, rather than leaving voluntarily, may face more serious consequences, including a debt to the Commonwealth for the cost of removal. Partner visas have their own rules about whether these consequences apply and whether they can be waived. They must be checked against the applicant's own history before departure.

Leaving also means separation for the whole period that the offshore application is processed. For couples with children, a sponsor who depends on the applicant, or an applicant from a country where it is unsafe or impractical to wait, that separation can be serious.

When offshore may be the better course

An offshore application may be the better course where the applicant has no realistic compelling reasons, where the Department's policy concerns are strong on the facts, or where section 48 makes an onshore application invalid. It may also suit couples who can wait together overseas. Department policy states that the Schedule 3 waiver is not meant for people who can leave and apply offshore, so the onshore case must explain why that is not a reasonable option for this couple. Our Subclass 309 visa page explains how the offshore application is prepared, and our Subclass 300 Prospective Marriage visa page may be relevant to engaged couples.

Contacting the Department about your overstay

Contacting the Department is usually better than waiting to be located, but it should be done with advice and with a plan, because the Department's response depends on what the person intends to do. A person who comes forward is in a different position from a person who is found through compliance action.

The Department has status resolution officers who deal with people who are unlawful or on bridging visas. A person who contacts the Department may be granted a Bridging Visa E to remain lawfully while they make arrangements to depart or while a matter is resolved. Where a partner visa after overstaying is being prepared, the better course is often to lodge the valid application first, so the bridging visa is linked to that application rather than to departure arrangements.

A person who is already in contact with the Department, for example because they hold a Bridging Visa E on departure grounds, should not assume that a partner visa can simply be added. The bridging visa conditions, any reporting obligations and the timing of departure all need to be checked first. Our guide to Form 956 and 956A explains how a representative is appointed, so the Department communicates through the lawyer.

Honesty about past breaches in a partner visa after overstaying

Honesty about past breaches is essential, because public interest criterion 4020 allows the Department to refuse a visa where false or misleading information or a bogus document has been given in the application or a recent one. A refusal under PIC 4020 can also trigger an exclusion period. A waiver is possible only in limited circumstances, including compassionate or compelling circumstances affecting an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

The Department already holds the applicant's arrival and departure records, visa applications and grant notices, and any cancellation or compliance history. A partner visa after overstaying that understates the overstay, omits unlawful work or contradicts an earlier visa application invites a PIC 4020 finding, which is far more damaging than the overstay itself.

A poor migration history is not the end of the case

A poor migration history weighs against the applicant, but it does not end a partner visa after overstaying on its own. In Nguyen (Migration) [2020] AATA 1047 and Gong (Migration) [2018] AATA 5690, the recorded issue in each was a poor migration history, and the Tribunal remitted the matter to the Department for reconsideration. Those decisions show that a history of non-compliance is weighed against the whole of the applicant's circumstances. They do not show that non-compliance is excused.

The correct approach is to disclose the history, explain it truthfully and present the compelling reasons that exist despite it. My Migration Lawyers presents the client's own account and evidence in the form the law requires. The firm does not minimise or reshape the facts.

Character and health

The ordinary character and health requirements also apply. The Department may request police certificates and Form 80 through a section 56 request for more information. Where the Department proposes to refuse on adverse information, it may issue a natural justice letter, and our article on responding to a section 57 natural justice letter explains how to respond.

Bridging visa, work and travel after lodging a partner visa after overstaying

After a valid partner visa after overstaying is lodged, the applicant will usually be granted a Bridging Visa E linked to that application, or in some situations a Bridging Visa C, rather than a Bridging Visa A. The type of bridging visa decides whether the applicant can work and whether they can travel.

Work rights

A Bridging Visa E may carry condition 8101, which prohibits work. Where that condition applies, the applicant can generally seek a further Bridging Visa E without condition 8101 by showing a compelling need to work, which is usually based on financial hardship. Our article on working while waiting for a Subclass 820 visa explains work rights in the partner visa context.

Travel

A Bridging Visa E does not permit travel. Leaving Australia ends it. A person on a Bridging Visa E who leaves while the partner visa after overstaying is pending may not be able to return, and may also trigger the exclusion periods described above. The Bridging Visa B is generally available only to Bridging Visa A holders, so it is not a solution for most overstayers.

Keeping the Department informed

Every change in circumstances, such as a new address, a new child or a change in the relationship, must be notified under section 104 of the Migration Act 1958, generally through Form 1022. New circumstances that strengthen the compelling reasons case should also be put before the Department promptly, because the decision maker considers circumstances up to the time of decision.

The documents behind a partner visa after overstaying

A partner visa after overstaying needs the same relationship documents as any other partner visa, plus evidence that explains the immigration history and proves each compelling reason. The relationship and the waiver are two separate cases in one application.

The relationship case is proved across the four aspects: the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons' commitment to each other. There is one relationship statement, written by the couple in their own words. Our guides to the partner visa relationship statement, Form 888 supporting statements, the partner visa document checklist and the 820 partner visa evidence checklist explain that side of the application.

The waiver case is proved with evidence of the specific compelling reasons, such as birth certificates of Australian citizen children, medical reports about the sponsor, evidence of care arrangements and evidence of the circumstances in which the visa lapsed. A written legal submission ties that evidence to criterion 3004 and to the Department's policy concerns. Our Subclass 820 visa guide and our Subclass 820 partner visa guide list the general requirements.

What happens if a partner visa after overstaying is refused

If a partner visa after overstaying is refused, the applicant in Australia can usually apply to the Administrative Review Tribunal for merits review, but the deadline is short and strictly applied, it cannot be extended, and the Tribunal has no power to accept a late application. The applicant must read the decision record and act at once.

The Tribunal decides on the evidence before it at the time of its decision, so new evidence and new compelling reasons can be put forward on review. If the Tribunal is satisfied that Schedule 3 should not be applied, it can remit the matter to the Department for reconsideration with a direction about that criterion, and the Department then completes the remaining criteria. Our articles on why Subclass 820 visas are refused, why partner visas get refused and choosing a visa appeal lawyer explain the review stage. A refused applicant should not lodge another onshore partner visa without advice, because section 48 generally prevents it.

What a realistic assessment of a partner visa after overstaying looks like

A realistic assessment of a partner visa after overstaying identifies whether a valid application can be lodged, whether Schedule 3 can be met or waived on the evidence available, and whether the onshore or offshore pathway carries less risk for this couple. It should be honest about weaknesses as well as strengths.

A proper assessment works through these questions in order:

• What visa did the applicant last hold, when did it end, and why?
• Has any visa been refused or cancelled since the applicant last entered Australia, so that section 48 applies?
• Did the last visa carry condition 8503 or another no further stay condition?
• Was any earlier application invalid, and when did the applicant actually become unlawful?
• Does the applicant meet criterion 3001 or 3004, or does the case depend on compelling reasons?
• What compelling reasons exist, and what evidence proves each of them?
• What does the applicant's compliance history show, and how will it be explained honestly?
• What would leaving Australia cost this couple, including any exclusion period?
• Is the relationship itself well evidenced across the four aspects?

Sometimes the honest answer is that the onshore case is weak and the offshore pathway is safer. Sometimes the answer is that the onshore case is strong and leaving would be a mistake. Either answer is worth having before a decision is made. Our article on getting a second opinion from an immigration lawyer may help people who have already received conflicting advice, and our article on hiring an immigration lawyer after lodging your own application helps those who have already lodged.

Choosing who acts on a partner visa after overstaying

A partner visa after overstaying is a legal matter that turns on Schedule 3, section 48, condition 8503 and bridging visa law, and an error can make the application invalid or leave the applicant exposed to detention. Our article on when you need an immigration lawyer for a partner visa and our guide to the partner visa lawyer versus doing it yourself question explain when professional help is worth considering. Our article on whether to use a migration agent or a lawyer for a partner visa sets out the practical differences.

Those comparing firms can read our guides to choosing a partner visa lawyer in Australia and, by city, choosing a partner visa lawyer in Sydney, Melbourne, Brisbane or Perth. For broader immigration matters, My Migration Lawyers also acts through our immigration lawyers in Sydney, Melbourne, Brisbane, Perth, Adelaide and Canberra. Every consultation is conducted by video, wherever the couple lives.

How My Migration Lawyers handles a partner visa after overstaying

My Migration Lawyers deals with complex partner visa matters and acts in many applications for a partner visa after overstaying, including long overstays, overstays after cancellation and overstays combined with a section 48 bar. The firm is capable of handling these matters because it treats the immigration history as the first legal issue, not an afterthought, and builds the relationship case and the Schedule 3 case together.

In practice, the firm's work on a partner visa after overstaying includes:

• Obtaining and reviewing the applicant's VEVO record, grant notices, refusal and cancellation letters, so the exact date and cause of the unlawful stay are established.
• Checking whether a valid application can be lodged, including whether section 48 applies and whether condition 8503 affects the position.
• Preparing the section 48 validity documents, including the sponsorship form and the two statutory declarations, where section 48 applies.
• Assessing criteria 3001, 3003 and 3004 and, where they cannot be met, preparing the compelling reasons submission with an evidence index tied to each reason.
• Advising honestly on whether the onshore pathway or the offshore Subclass 309 pathway carries less risk, including the effect of any exclusion period.
• Preparing the relationship statement, Form 888 statements and relationship evidence across the four aspects, and checking them against earlier visa applications.
• Managing the bridging visa, any request for permission to work, section 56 requests, natural justice letters and Form 1022 notifications through to decision.

The firm is led by Weiwei Zhang, Principal Lawyer. Information about the firm's Schedule 3 work is on our Schedule 3 waiver page, information about the onshore application is on our Subclass 820 visa page, the firm's partner visa practice is described on our partner visa lawyers page, and more about the firm is on our about page.

If you have overstayed your visa and want to know whether a partner visa after overstaying is realistic for you, book a consultation online or call 1300 040 300.