Applying for a visa onshore while unlawful or as a bridging visa holder

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You’ve looked at all the requirements for a visa and ticked off each one as being met. Satisfied of your eligibility, you’ve lodged the visa application, confident of a positive outcome.

You open your email months later and find correspondence from the Department of Immigration. They have asked you for a “Statement regarding additional criteria applicable to non-citizens who do not hold a substantive visa.”

What does this mean? Why is this required? What do you do now?

This is a reasonably common scenario among onshore applicants for visas. It is an area of migration that is often overlooked—not just by applicants but even by migration agents. It can be a complex area to navigate, not just because of the limited availability of “plain language” information out there for the general public, but also because every situation and every visa is different.

National Visas has experience with making these “waiver” submissions and advising clients about whether they may be able to meet these additional requirements. We explain a little bit about how they work in this article.

When do these additional criteria apply?

To apply onshore (that is, while you are in Australia) for an Australian visa, the usual requirement is that you hold what is called a “substantive” visa. In other words, you hold a “proper” visa that is not a Bridging Visa.

In some circumstances, the requirement can be more or less restrictive. For example:

  • Some visas require you to hold “specific” visas to be eligible. These are called “qualifying” visas. Student Visas are an example of this.
  • Some limited visas will allow you to apply from a Bridging Visa. For example, most Permanent Skilled Visas will allow you to apply for a Bridging Visa A, B or C.

In most cases (and again, every case is different; hence, the importance of ensuring you engage a professional who knows the ins and outs), if you do not hold a “substantive” visa, there will be additional criteria you are required to meet in order to be granted the visa.

What are these additional criteria?

Again, every visa has its own requirements. As it is impossible to comprehensively address every visa subclass and situation, I have collated the more common criteria below so you can understand some of the complexities.

Keep in mind that most of the time, more than one of these apply simultaneously and you will need to meet the requirements for each one in order to be granted the visa. To make it even more complex, there is sometimes an “exemption” to meeting one or more of these additional criteria if you can meet some other requirement (often a demonstration of compelling circumstances). However, these exemptions are not always available either.

Additional Criterion 1: Making the application within 28 days holding a substantive visa

It is important to know when this criterion applies because it is an “objective” criterion. If it has been more than 28 days, you cannot meet this requirement and you must look at alternative visas or determine whether an exemption is available.

Knowing when you absolutely cannot meet a requirement can help you re-assess your situation and plan your next move. Too often, we come across people who have a genuinely compassionate circumstance, but do not understand that the legislation often prohibits the decision maker from taking that into consideration. We can advise on alternative visas that will allow you to argue “compassionate circumstances.”

Additional Criterion 2: Making the application within 12 months of holding a substantive visa

This criterion is more lenient than the 28-day one. It is important to know which one applies (if any) in order to understand how this relates to your visa prospects. You could save yourself thousands of dollars in visa fees if you know it has been more than 12 months and you would be wasting your money and should instead be looking into alternative pathways.

Additional Criterion 3: Factors beyond your control caused you to cease holding a substantive visa

This criterion is often imposed in addition to Additional Criteria 1 or 2. If this applies, it is important to know whether the Department (or courts or tribunals) has previously made a decision on similar circumstances to yours. Once you know whether you are likely to meet this criterion, you can make better choices about what to do next.

These types of more “subjective” arguments are most effective when drafted by a professional migration consultant who knows how to structure the argument to highlight the aspects of your situation that the Department ordinarily considers “beyond your control.” As migration agents, we also know what aspects not to draw attention to. For example, a negligent migration agent failing to lodge your application on time has been decided at tribunal as a factor not beyond your control. This is because, under law, the actions of your migration agent are taken to be yours.

At National Visas, our submissions also draw on previous court and tribunal cases that support what we are trying to argue in your case. This is very important, as tribunals in particular often make different decisions in similar sets of circumstances, and a submission where we point out the cases that support our position (and not the ones that do not) will be more convincing than one where you just state the facts of your situation.

Additional Criterion 4: There are compelling reasons for granting the visa

This criterion is almost always applied in conjunction with criterion 3. Similarly, it is a relatively subjective criterion that would benefit from a well-supported submission by a migration agent, citing relevant cases to support your position.

Generally speaking, a successful argument for compelling reasons would normally show that the interests of Australia or an Australian citizen would be adversely affected, but again, each individual situation is unique and the best argument will involve one that draws on similar cases that have been approved at the tribunals or courts.

Additional Criterion 5: Complied substantially with all conditions on previous substantive and subsequent bridging visas

This criterion often catches people out. This is one reason why it is so important to know the conditions that apply to any visa you hold. If a visa condition is mandatory, even if the Visa Grant letter neglected to list it, it still must apply by law.

Other traps you can fall into are things like:

  • Forgetting to advise your education provider about changing address within 7 days of moving (condition 8533);
  • Working more hours than are allowed on your visa; and
  • For those on a Bridging Visa E (BVE) granted on departure grounds, not leaving by the date specified in Condition 8514 on that visa, even if you were lawfully granted a new BVE after requesting an extension of time to depart.

Additional Criterion 6: Would have been entitled to be granted the visa the last day you held a substantive visa

This criterion has recently been the subject of tribunal and judicial consideration. Historically, although it has been in operation for some time, it was often (mistakenly) overlooked due to a stronger focus on assessing criteria 3, 4 and 5.

Courts and tribunals have now relied on this provision to refuse visas. This has a big effect on, for example, employer sponsored visa applications, where a nomination must be lodged before the visa application can be lodged.

Due to the operation of this criterion, unless the nomination was lodged while you still held a substantive visa, your employer sponsored visa must be refused for failing this criterion. A recent Migration Review Tribunal case explains this in detail (but you may find the case heavy reading!).

Additional Criterion 7: Must intend to comply with visa conditions

This is the “future” version of criterion 5 above. Often, the Department will assess this by looking at your prior conduct and any stated intentions in your submission. This is another reason why compliance with visa conditions is paramount.

Additional Criterion 8: Must not have relied on any of the other criteria above previously

This criterion essentially has the result that if you have relied on any of the other additional criteria above before, you cannot meet this criterion. In other words, if you have ever been granted a visa after applying for a Bridging (or no) Visa, you generally cannot do it again.

I note that this is more complex than you may think. You will only fail this criterion if you previously relied on an “additional” criterion in Schedule 3 of the Migration Regulations 1994. I note that there are many visas whose “additional criteria” are not part of Schedule 3. For example, there are sometimes requirements to demonstrate criterion 1 outside of Schedule 3 (such as for second Working Holiday Visas); meaning, you would not fail this criterion because in that case, criterion 1 was not part of Schedule 3 for that visa.

If you think you may be in this situation, we highly recommend you seek professional advice so you can be clear about the exact legislation that was met. This is a complex issue.

Need information specific to your situation?

Onshore Visas are complex on many levels, and this is doubly so if you no longer hold a substantive visa. This may be because you have (perhaps accidentally) become unlawful, or are on a Bridging Visa.

The best way to ensure you are managing all the issues outlined in this article effectively is to obtain professional migration advice. We understand that more is at stake for onshore clients, as you have already substantially given up your home overseas and spent considerable amounts of money on things like airfares and settling in Australia, and the prospect of having to depart Australia would have disastrous effects on your family, friends and possibly an Australian employer.

The appropriate place to start your enquiries if you are in this situation is here, where we can guide you through the best way forward to help you find a pathway to remain in Australia.

Ivanna Cheng
Migration Advisor
MARN 1066462

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Ivanna Cheng

Migration Advisor at National Visas
Ivanna Cheng has been an Australian Registered Migration Agent for over 3 years. Her major area of expertise is Employer Sponsored Visas but she also has ample experience with Partner Visas, General Skilled Migration, Visitor Visas and Student Visas.

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