Ahmed JaanBeing found to be in an unlawful situation in Australia after obtaining the wrong visa is a stressful experience that can have severe repercussions if not properly managed. The law applies to you to either remain, seek a new visa, or face removal. This guide outlines your alternatives, risks and immediate steps which you need to take into consideration, particularly when you are currently unlawful or on a bridging visa.
Understanding Your Current Status
In case your previous visa has expired, and you either did not have a valid visa right at that moment, or you have requested another type of visa without any valid visa remaining, you can be considered an unlawful non-citizen. This situation implies that you are not in Australia with a legal permit to stay in the country. Immigration Status Resolution Service can assist you in knowing your status and give you a roadmap for the next steps, including visa or voluntary departure assistance.
Immediate Risks: What You’re Facing
Being unlawful carries significant risks:
Risk of Detention and Removal
An illegal non-citizen might be taken to immigration detention under Australian law and may stay there until a visa or their removal from Australia.
Future Visa Barriers
In the case of a person who is unlawful and has been refused or cancelled a visa since his or her last entry, then Section 48 of the Migration Act can prevent him or her from making most onshore visa applications. Section 48 takes effect automatically where you do not own a substantive visa, and any effort to lodge another visa onshore is invalidated.
There are, however, some visa subclasses which are not subject to Section 48, such as some Partner and Protection visas, and some skilled visa or medical-treatment visas.
Early and proper advice, particularly by the Immigration Lawyers or Migration Lawyers Adelaide, can be very helpful when you have lost legal status. Acting fast is a way to protect your options and is a way to clear a better path.
Available Legal Remedies
1. Apply for a Bridging Visa E (BVE)
Using a Bridging Visa E is one of the initial steps if you are an unlawful. This will render your stay legal as you pursue other visa schemes or plan how to exit Australia. In this case, being ignorant of this step is common among many people; however, it is crucial to stay legal and retain the right to a visa in the future.
2. Ministerial Intervention
There are certain exceptional cases where you may request Ministerial Intervention from the Minister for Immigration. It is not a presumed avenue, but can be taken to be an avenue with compelling humanitarian or public interest reasons. At his or her own choice, the Minister can permit a visa application that would otherwise be rejected or permit a visa itself.
To be considered, you generally need to show:
- Exceptional circumstances or a major change in personal or external conditions
- That new information wasn’t previously available.
- That you have taken steps to regularise your status, such as holding a Bridging Visa when possible
3. Judicial Review (Limited Use)
In an event where a ruling regarding your visa had an error of law, you might be in a position to request a court proceeding within the Federal Circuit and Family Court of Australia. This does not re-examine your visa facts, but it looks at whether legal procedures were adhered to. There are normally strict time constraints.
4. Offshore Visa Applications
If Section 48 prevents you from applying onshore, leaving Australia and applying offshore for a substantive visa is often the feasible option. Once you are offshore, Section 48 no longer applies, and you can apply for visas such as visitor, student, or work visas from abroad.
Time-Critical Actions: Why You Must Act Fast
Your situation can worsen quickly if you delay:
- Unlawful status can affect future visa eligibility and become harder to resolve over time.
- You may be denied certain legal remedies if deadlines are missed (for example, judicial review applications often have a 35-day limit).
- Staying unlawfully could lead to removal or detention before you can resolve your status.
Applying for a BVE promptly and seeking professional advice immediately are critical first steps.
When to Contact an Immigration Lawyer
If your status is unlawful, the case is complicated, or Section 48 affects your ability to apply, you should contact expert legal help right away.
Immigration Lawyers and Migration Lawyers Adelaide (or in your local region) can:
- Clarify your legal position and options
- Assist with BVE applications.
- Prepare Ministerial Intervention submissions.
- Help you understand exemptions to Section 48
- Advise on offshore visa strategy if needed
Professional support can be vital for complex cases, especially where legal and procedural nuances determine whether you remain lawful or have viable pathways forward.
FAQs
1. What happens if I stay in Australia unlawfully after applying for the wrong visa?
When you are in an illegal state, you will face the danger of detention, deportation, and adverse consequences on your visa eligibility in the future. Seeking a Bridging Visa E can help make your stay lawful while you can explore other options.
2. Can I still apply for a visa onshore if I’m undocumented?
Typically, Section 48 will bar you from lodging new visa applications while onshore unless you apply for a subclass that’s exempt.
3. What is Ministerial Intervention?
Ministerial Intervention provides the Immigration Minister with an opportunity to hear and possibly grant a visa or begin lifting application bars to cases of exceptional public interest.
4. Can I make a Ministerial Intervention request if I’m unlawful?
Most requests are considered only if you have a legal status or once your bridging visa is in place.
5. Is it better to leave Australia and reapply offshore?
Often yes. Once offshore, Section 48 no longer applies, and you can lodge substantive visa applications directly, increasing your chances of a new visa grant.
