What to do if your student visa has expired, but you cannot depart Australia due to COVID-19?

If your student visa has expired, and you are currently unlawfully in the community, you must act urgently to resolve your status.  If your student visa has ceased, and you are within 28 days of having last held a substantive visa, there are a couple of different options available to you.

1. Apply for another Student visa

Australian migration law allows for a one-chance single opportunity for individuals who have held a student visa that has ceased to apply again for another student visa within 28 days of having held that visa. There is only one opportunity you will ever have to use this mechanism, so if you have relied on it previously you cannot then apply for a second student visa after becoming unlawful.

Notwithstanding, if you have become unlawful, applying for another student visa will certainly be your safest option. This is because the grant of a second student visa from an unlawful state is non-discretionary (you can apply for it as a right). You should talk to a migration lawyer today about your opportunities to apply for a second student visa.

2. Apply for the Temporary Activities Subclass 408 Visa.

The Australian Government has provided the Temporary Activities (subclass 408) (COVID19) stream visa for individuals who are in Australia but are unable to apply for any other visa type. You may apply for the “COVID19 visa” if you are within 28 days of your previous visa having ceased.

Generally, the principle with the COVID 408 visa is that it is a visa of last resort, only available throughout the COVID-19 pandemic period. Therefore, we do not recommend any person to consider the COVID 408 visa unless they are not in a position to apply for any further visa.

3. Apply for a Partner Visa

Because the Partner visa is contingent on the rights of the Australian citizen or permanent resident to have their partner join them in Australia, the Australian Government allows you to apply for this visa from an unlawful state. This means you may be unlawful in the community for up to 10 years, and you can still lawfully apply for the partner visa.

If you apply within 28 days, the criteria requires that you demonstrate that there were forces beyond your control that prevented you from applying for the visa. If you apply for the partner visa after having been unlawful for 28 days or longer, then you will need to show fairly significant compelling and compassionate circumstances that support the grant of the visa. The longer you become unlawful, the more compelling and more compassionate circumstances must be for the decision maker to consider a grant.

We do not recommend this pathway unless you are in an established relationship with an Australian citizen or permanent resident.

4. Apply for a Visitor Visa

If you are within 28 days of having held a substantive visa, the final option available to you is to apply for a visitor visa. A visitor visa may be applied for whilst you are unlawful, however it may only be applied for within 28 days of having last held a substantive visa. Additionally, you will need to demonstrate why there were circumstances beyond your control that prevented you from applying for another visa within the required lawful period. If you cannot show that there were compelling reasons why you were unable to apply within the relevant period, then your application for the Visitor visa will be refused.

If you have become unlawful in the community, you must act urgently to receive specialised migration legal advice in order to determine the strongest pathway for you to regularise your status in Australia. Contact one of our migration lawyers today to discuss your matter. 

If you would like advice as to whether you are eligible for one of these visas, or require further information, please contact a member of the Corney & Lind Migration Law team today.

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