Onshore spouse visa for overstayeyrs or bridging visa holders

The criteria for grant of an onshore Spouse visa may be satisfied where the spouse visa applicant has been in a "long-standing" partner relationship with an Australian Citizen or Australian Permanent Resident.

This is despite a visa applicant no longer holding a substantive visa in circumstances where (1) they have simply over-stayed their last visa or (2) where a visa applicant had lodged another visa application whilst in Australia and that visa application has been refused.

An example of (1) above would be where an onshore visa applicant has held a Working Holiday visa that has expired.

An example of (2) above would be where an applicant has lodged an application for another visa (such as a sub-class 457 Employer Sponsored application) whilst in Australia and that application has been refused.

In the latter situation [(2) above] where an Applicant has had a visa application refused whilst in Australia there are a very limited number of further visas that the Applicant may apply for whilst in Australia.

Interestingly, the limited visas that an Applicant may apply for (2) above now include (following recent amendments to the Migration legisaltion) either a Partner (temporary) residence visa (Class UK)-which is a subclass 820 Partner (temporary residence) visa or Partner (Residence) Class BS-which is a sub-class 801 Partner (Permanent residence) visa.

The Migration Act provides these limited classes of visas may be applied for by an Applicant who is onshore and has had a visa application refused whislt onshore:-

(a) Partner (Temporary) (Class UK);
(b) Partner (Residence) (Class BS);
(c) Protection (Class XA);
(ca) subject to subregulation (3), Medical Treatment (Visitor) (Class UB);
(e) Territorial Asylum (Residence) (Class BE);
(f) Border (Temporary) (Class TA);
(g) Special Category (Temporary) (Class TY);
(h) Bridging A (Class WA);
(j) Bridging B (Class WB);
(k) Bridging C (Class WC);
(l) Bridging D (Class WD);
(m) Bridging E (Class WE);
(ma) Bridging F (Class WF);
(mb) Bridging R (Class WR);
(n) Resolution of Status (Temporary) (Class UH);
(o) Resolution of Status (Class CD);
(p) Child (Residence) (Class BT).
Note Section 48 of the Act limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused.


In order be granted a spouse visa in these two situations Applicants need to ensure that the last substantive visa held by them did not contain a "no further stay" condition as this would, in most circumstances, prevent them lodging a subsequent visa application whilst onshore.

The Department of Immigration's policy on interpreting "long-standing" relationship in the context of a spouse visa application where the applicant does not hold a substantive visa is set out below:-

"…the ‘compelling reasons’ provision, allows certain persons unlawfully in Australia, but in relationships with Australian residents, to legalise their status if compelling reasons exist.

In assessing whether or not there are compelling reasons, officers are to take into account the circumstances that the Minister considers to be compelling. These circumstances are that:

• there are Australian-citizen children from the relationship or

• the applicant and their sponsor are already in a long-standing partner relationship (taken to be a relationship which has existed for at least two years.)

In these circumstances, it is considered the hardship that could result in applying the Schedule 3 criteria is sufficiently compelling to justify not applying the criteria.

This does not mean only those cases with such circumstances should benefit from the waiver. It would be an error of law to apply policy inflexibly. Family Section support a broad approach which takes into account all of the circumstances of the case. Other examples that may be compelling reasons include:

• maternity issues where departure from Australia could complicate matters for the applicant

• age related maternity issues for the applicant

• separation issue for an extended period from the sponsor

• the applicant is the sole breadwinner and their departure would significantly impact on the sponsor's welfare
• negative impact on step-children's formative years if the applicant departs

• DFAT warnings on community violence in the applicant's home country which makes it unsafe for the applicant's circumstance

• hardship caused to the relationship between the sponsor and the applicant's children if the applicant and the children have to leave Australia to make an application offshore

• the sponsor feels compelled to leave Australia with the applicant, leading to loss of employment and income in Australia and resulting in serious financial and other difficulties for the family unit when they eventually are able to return

• reasons concerning safety for the applicant and the sponsor in the applicant's home country if required to submit application offshore

• the applicant's family unit and the sponsor would suffer significant psychological and material hardship if they were forced to depart the country

• the sponsor relies on the applicant for ongoing and continuous care.

Note: This list is not exhaustive and officers are, or course, required under s54 of the Act to have regard to all the information in the application."

Should you wish to obtain advice on your particular Australian immigration situation please telephone me to make an appointment.



Andrew Hackworthy
Solicitor/MARN9790738
7/133 Macpherson Street
Bronte NSW 2024
Australia
Tel: 02 9389 2290