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Accidentally overstayed, must now satisfy Schedule 3 for partner visa :-(

53K views 90 replies 35 participants last post by  Emily j 
#1 ·
I'm a US citizen who is married to an Australia citizen. I spent most of 2012 in Australia on a tourist visa. In order to avoid having to fly overseas every 3 months, I applied for an extended stay visa that would allow me to stay for 6 months. I mistakenly believed this was literally just an extension to my original tourist visa and happily continued on my merry way believing that my original expiry date of Nov 2012 still applied.

I just found out last week that wasn't the case and that the extended stay visa was a separate visa and actually cancelled my original tourist visa, with a new expiry date of Sept 2012. Oops. There was nothing to indicate clearly that it was a separate visa and the new expiry date was contained in an email that was sent to my husband (since he was the sponsor of this new visa). He never opened the email, thinking it was just a receipt for the payment, and of course he never forwarded it to me.

One day before my original expiry date, we lodged an application for a partner visa, with the assistance of a very expensive migration lawyer, who now claims he also did not know the original tourist visa and the extended visa were two separate visas and that the latter cancelled the former. Upon lodging my partner visa, I was granted a bridging visa C.

When I went in last week to immigration to update my passport details and inquire as to whether or not the "no travel" restriction on my BVC could be lifted, it was then that I was informed that I had unwittingly spent nearly two months in Australia unlawfully! I was also told that, because I had been unlawful, I would now have to satisfy "Schedule 3 criteria" in order to get my partner visa:

Criterion 3001 requires that the application is made Within 28 days of the last day on which the applicant held a substantive visa or from the time notice is given.

Criteria 3003 and 3004 require that the applicant satisfy several sub-criteria which include the following:
-the applicant is not (i.e. at time of application) the holder of a Substantive visa because of factors beyond their control', and
-there are compelling reasons for granting the visa; and
- the applicant complied substantially with the conditions of their last visa (apart from any condition breached simply because the applicant ceased to hold a visa); and
-the applicant would have met all the criteria for grant of the visa in this application apart from the Schedule 3 criteria, on the last day they held a substantive visa.​

My biggest concern is being able to satisfy the criterion for "factors beyond my control". I'm not sure what was essentially an honest mistake would count as being beyond my control. Our migration lawyer has said he does not know how to deal with something like this. I have 19 days left to come up with a response to immigration.

Does anyone know, if I don't satisfy that requirement, does that mean I will have to go back to America and lodge another partner visa off-shore?

If so, does the 3 year exclusionary period apply to spouses or can I lodge again right away?

I am so furious that the lawyer did not catch this and I really do not want to go back to America without my husband. We have been nearly bankrupted by the process of getting me here so far and we really cannot afford an expensive mistake like this. Would it be worth it to fire this lawyer and hire another one to sue him for malpractice? Even the girl I spoke to at immigration was surprised that he claims not to have known they were two separate visas, as it is such a basic thing.

I am at a loss as to what to do. Our options seem very limited right now, and none of them very attractive. :(
 
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#40 ·
Hi mark
We are still in process of making a decision about attorney what's best we can do know we hav to show the compelling reasons why I have overstayed my visa and just applied for working rights would it be possible if I pay all my taxes from last three years and it will be hard fo me and my partner to apply off shore she had a open heart surgery what's the best we can do thanks mark
 
#44 ·
Hi Aliz -

I understand your frustration. First, I would suggest getting professional help as Schedule 3 submissions are challenging. In terms of who to get help from, that comes down to developing a level of confidence in the knowledge and experience of your advisor. The key to this is identifying possible compelling reasons that would be seen as compelling by DIBP and/or the MRT - with your type of case it's very likely that it will be refused by DIBP, so the MRT is where you'll really end up testing your case. Medical issues are certainly a good place to start, but having done many of these at DIBP and the MRT, it comes down to evidence of conditions that existed at the time of application - that's absolutely got to be the focus of the legal arguments you make.

Happy to assist further if you'd like - my contact info is in my email signature below.

Best,

Mark Northam
 
#51 ·
please help

Hello Mark, my name is Mariana Perez, Im from chile and i saw your advices in internet about visa problems. Im married with a Australian citizen since past may. We lodge our spouse visa and received acknowledgement of a granted bridging visa A a week after. We knew that it will only come in effect once the tourist visa that i was holding at the moment expired (which was the 21 of may). Until today we thought that the bridging visa A was in effect, but a possible employer tried to check by visa status in VEVO and found that it saids that a error has occurred. I tried to do it as well and couldn't get information, so I called immigration and the lady told me that because before I entered Australia with the tourist visa I had a crew maritime visa (I used to work in cruise ships, until the 25 of January of the present year) once the tourist visa expired, the crew visa got in effect.. so because of that I'm assuming that Im illegal at the moment. Is that possible even though it clearly says in the information about Bridging visa A that it will come into effect once THE CURRENT SUBSTANTIVE VISA ( TOURIST VISA THAT I WAS UNDER WHEN I LODGE THE SPoUSE VISA) COMES TO AN END?? .. So the alternative that the lady gave me is to leave the country, send a request to cancel the crew visa then apply for a tourist visa, come to Australia and then apply for a bridging visa A. The thing about doing that is the tourist visa given to Chilean citizens last for 1 year in total, but you have to leave the country every 3 months. What i don't understand is how the bridging visa A will come into effect if i don't leave the country after 3 months, because accordingly to the law it clearly says that if the substantial visa is cancelled the bridging visa A would be cancelled as well. Furthermore, if I'm on a crew visa, even though I stopped working in the cruise ship the 25 of January of the present year, that means that I'm illegal at the moment?? cause this kind of visa only allows the person to stay 5 days!!!! I DONT GET HOW IMMIGRATION ACTIVATED THAT VISA INSTEAD OF THE BRIDGING VISA A KNOWING THAT I ENTERED THE COUNTRY UNDER A TOURIST VISA AND THAT IM NOT WORKING ON A CRUISE SHIP ANYMORE!!!.. well i would like to know what to do and if you think that immigration has to resolve this problem... thanks!!! please help

Please if you can advice me !!! I'm desperate as I don't know what would happen once i go to immigration office on Monday. And also what would happen with my spouse visa application that is already being processed .
 
#52 ·
Hi Mariana -

Thanks for the email and post - it's very unusual that the cruise visa reactivate after a visitor visa had been granted and ceased, however given Australia's very complex visa system, it's not surprising.

Sounds like you need to get rid of the cruise visa - important that it be cancelled while you are offshore, not onshore. Once it's cancelled, it will also cancel (automatically) any bridging visas you held at the time. When you re-enter on a new visitor visa after the cruise visa is cancelled, once onshore you should re-apply for the BV-A from the partner visa to be granted. Then, when you overstay the 3-month stay period, the BV-A will automatically activate. The visitor visa at that point is not cancelled, it simply ceases and you are on the BV-A. If you later want to leave the country, apply for a BV-B prior to leaving, then depart and re-enter on that. Even if the visitor visa remains in effect, it will not be active as long as you hold a BV-A or BV-B.

Hope this helps -

Best,

Mark Northam

Hello Mark, my name is Mariana Perez, Im from chile and i saw your advices in internet about visa problems. Im married with a Australian citizen since past may. We lodge our spouse visa and received acknowledgement of a granted bridging visa A a week after. We knew that it will only come in effect once the tourist visa that i was holding at the moment expired (which was the 21 of may). Until today we thought that the bridging visa A was in effect, but a possible employer tried to check by visa status in VEVO and found that it saids that a error has occurred. I tried to do it as well and couldn't get information, so I called immigration and the lady told me that because before I entered Australia with the tourist visa I had a crew maritime visa (I used to work in cruise ships, until the 25 of January of the present year) once the tourist visa expired, the crew visa got in effect.. so because of that I'm assuming that Im illegal at the moment. Is that possible even though it clearly says in the information about Bridging visa A that it will come into effect once THE CURRENT SUBSTANTIVE VISA ( TOURIST VISA THAT I WAS UNDER WHEN I LODGE THE SPoUSE VISA) COMES TO AN END?? .. So the alternative that the lady gave me is to leave the country, send a request to cancel the crew visa then apply for a tourist visa, come to Australia and then apply for a bridging visa A. The thing about doing that is the tourist visa given to Chilean citizens last for 1 year in total, but you have to leave the country every 3 months. What i don't understand is how the bridging visa A will come into effect if i don't leave the country after 3 months, because accordingly to the law it clearly says that if the substantial visa is cancelled the bridging visa A would be cancelled as well. Furthermore, if I'm on a crew visa, even though I stopped working in the cruise ship the 25 of January of the present year, that means that I'm illegal at the moment?? cause this kind of visa only allows the person to stay 5 days!!!! I DONT GET HOW IMMIGRATION ACTIVATED THAT VISA INSTEAD OF THE BRIDGING VISA A KNOWING THAT I ENTERED THE COUNTRY UNDER A TOURIST VISA AND THAT IM NOT WORKING ON A CRUISE SHIP ANYMORE!!!.. well i would like to know what to do and if you think that immigration has to resolve this problem... thanks!!! please help

Please if you can advice me !!! I'm desperate as I don't know what would happen once i go to immigration office on Monday. And also what would happen with my spouse visa application that is already being processed .
 
#53 ·
Thanks Mark!! but that means that Im illegal at the moment?? Im very scared of that as it could jeopardize my spouse visa already lodge.. Do you think if i go to immigration office on Monday they could do something about it?? It kind of sounds that they actually made a mistake ... thanks so much for your prompt replay and advice!!! you are an exceptional person that helps other without even knowing them :) .. thanks!! god bless you :)
 
#54 ·
Hi Marimar -

Glad to help. Sounds like your cruise visa somehow reactivated - note that any substantive (non-bridging) visa always has priority over a bridging visa. I'd tell them that you thought that once your visitor visa was granted, it would replace your cruise visa, and that you had no idea that the cruise visa would come "back to life". Assuming you are now on your cruise visa, but not working on a cruise, at worst you're in breach of the visa conditions, but certainly not intentionally or by any fault of your own - you had every right to believe that the visitor visa ceased (ended) your cruise visa. I expect they will understand this and help you sort it out. If not, please get in touch with me and we can see what can be done.

Hope this helps -

Best,

Mark Northam
 
#56 ·
Hi
my name is sam and i am currently in Australia, however i have been refused an application for spouse visa and i am scheduled for an interview early next month with the MRT
the reason that i was refused was based on the fact that i dont meet schedule 3 criteria and i need compelling reasons to waive schedule 3
i would like to note that i had a student visa however it was cancelled and i was not aware of such.
my spouse and i went to the department of immigration to apply for spouse visa, and it was then, i was told of the cancellation.
and due to the above i then was granted a bridging visa D that was valid for 7 calender days.
in that time i applied for onshore spouse visa and was refused due to the schedule 3.
the department has indicated that i need "compelling reasons" to waive schedule 3.
my question is the following:
what in your experienced opinion are " compelling reasons"? and what do you advise me to do in order to waive schedule 3?
note: my wife has an anxiety, depression and disorder
she had a miscarriage of our baby couple of weeks ago
we are under threat from her ex husband and it will be dangerous if i have to go back to my country


i thank you very much for attending to this question and i will be grateful to you if you can answer this question for me, nevertheless shed some light on this matter that has caused some confusion for me.

sam
 
#57 ·
Hi
my name is sam and i am currently in Australia, however i have been refused an application for spouse visa and i am scheduled for an interview early next month with the MRT
the reason that i was refused was based on the fact that i dont meet schedule 3 criteria and i need compelling reasons to waive schedule 3
i would like to note that i had a student visa however it was cancelled and i was not aware of such.
my spouse and i went to the department of immigration to apply for spouse visa, and it was then, i was told of the cancellation.
and due to the above i then was granted a bridging visa D that was valid for 7 calender days.
in that time i applied for onshore spouse visa and was refused due to the schedule 3.
the department has indicated that i need "compelling reasons" to waive schedule 3.
my question is the following:
what in your experienced opinion are " compelling reasons"? and what do you advise me to do in order to waive schedule 3?
note: my wife has an anxiety, depression and disorder
she had a miscarriage of our baby couple of weeks ago
we are under threat from her ex husband and it will be dangerous if i have to go back to my country

i thank you very much for attending to this question and i will be grateful to you if you can answer this question for me, nevertheless shed some light on this matter that has caused some confusion for me.

sam
To succeed in a waiver the 'compelling reasons' relied upon must have existed at the time of the visa application.
I suggest you put the full facts of your case to a registered migration agent to develop the best possible strategy.
 
#58 ·
getting a waiver of schedule 3 could be tricky and hard. It depends if you had all those circumstances at the time of application and you can prove it. I had my visa cancelled then applied for partner visa then asked for compelling reasons and I wrote few but they did not deem them to be compelling and got a refusal. Finally applied for MRT to give a last shot before going offshore. Odds were stacked against us but we won MRT and waiver was granted. I provided same reason before MRT as to DIBP. But member had a different opinion than CO. My application got remitted to DIBP for reconsideration. It was a huge win for us. I recommend you to get help of a lawyer. Outcome relies on evidence you provide and how member looks at it.
Good luck
 
#61 ·
Collate heaps of evidence (Social, Financial aspects, Nature of Commitment and Nature of Household) to proof your relationship is genuine and long lasting at the AAT. All the evidence should have existed at the time of your initial application. To illustrate, including each other as beneficiaries in the superannuation, annotated photos, joint bank account, joint names on credit card, joint names on utility bills and lease agreement, and quoting as each other as Executives on your Last Wills.
 
#68 ·
All jokes aside, schedule 3 is a major hurdle and unless there is a huge amount of evidence to show circumstances outside the applicants control that meant stabilising immigration status was almost impossible I'm not sure how you can proceed. Knowingly living illegally in Australia is a very serious offence, one which rightly comes at a major cost. Whether your partner owns their house is arguably inconsequential, it does not limit someone's accountability regarding immigration status and all that entails. Look to one of the very knowledgeable and helpful agents on here for either recommendations for suitable agents or hire them fully to handle your case. It is a very serious situation, treat it with the gravitas it deserves as deportation and an immigration ban for several years could be a very possible result.
 
#69 ·
Your partner owning her own home shouldn't matter in regards to evidence there are other forms of evidence that can be used.

We have quite a few people on this forum where the Australian owns their own home and have gathered evidence from other sources. They are still able to get joint bills, joint insurance, joint bank accounts etc.

As has been said schedule 3 is not easy to beat you need a really good agent for that. Overstaying 4 years is not something you accidentally do a person would know when their visa expires.

You have to prepare yourself that you may have to go offshore and apply for a 309.
 
#70 ·
Any good reputed immigration lawyers that you guys know need to hire one asap the previous lawyer immigrations solutions was just a rip off and no help at all we got charged for sending mails calls $2000 on top of fees thx for ur help and suggestions I appreciate it and does anyone heard of George Lombard immigration lawyer or brett & saters ?
 
#71 ·
George Lombard is one of the most eminent immigration lawyers in Australia.

Sent from my iPhone using Australia
 
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#72 ·
You are probably best to save your money, move offshore and re-apply for the 309.
I don't think you will have a positive outcome at AAT, there goes the money you want to spend now, you will have to leave Australia, apply for the 309 (with probable help from a migration agent due to previous visa history) and you will face a 3 year ban on a tourist visa to come back and visit. There is upwards of 15k to be spent again.

It would probably be cheaper for you both to move to asia and start the process over.
 
#73 ·
There's a lot more at stake then just money
You never know I'll still go with AAT our case is genuine I've seen sum post about people over stayed by 7 to 20 years and still granted visa I may be grant or may be refuse but I'll try and see thx for your opinion .
 
#74 ·
Having been in your very situation, albeit for 18months not 4 years I know too well what is at risk in these situations. I had a very serious accident as well as a previous employer testify they had mismanaged my 457 paperwork. 12 months of my overstayed was hospital and bed bound. This allowed me to address the schedule 3 requirements. In your case, just an accidental oversight that resulted in illegally residing in Australia for 48months seems like a big task to explain. I can see no matter what you will attempt the AAT but as has been stated already, an offshore application with proper assistance would put you in a better stead for visa grant. Either way, good luck to you.
 
#76 ·
I think the poster simply doesn't want to leave Australia. Hence the first overstay and now delaying leaving by waiting for a court hearing which is sure to be refused. It's people who overstay their visas on purpose not by accident at all, that makes it so hard on the rest of us who can't get tourist visas at all because of overstayers like the poster

Sent from my iPad using Australia
 
#78 ·
When my granddaughter was five she took her big sister's purple nail polish and wrote A B C D ... on a white carpet. She claimed it was an accident - she did not get into trouble for accidental messes.

It is possible for a person to overstay in the belief that s/he held a visa, but apart from that circumstance an accidental overstay of several years seems as likely as
A B C D ...
 
#80 ·
HELP Schedule 3 criteria

HI
i am Latvian citizen
applied for partners vias.
we have been together for two years, i ve made a mistake with my visa dates, overstayed for 5 days
we actually got married in the church on a day when visa ends (didnt know that at the beginning lol). i found out that ive overstayed when went to apply.
that was just my stupied mistake for not cheking it properly.
i went to the office and applied personally pluss filled some additional documents
now i have to meet the schedule 3 criteria.
i dont know what to do, we dont have a lawyer, doing everything ourself.
what should i write?
i dont work, mys husband has a casual job, his parents are helping us a little, but they are on pension.
for me to leave a country would be awfull, we already in dets because of visa costs.
i was pregnant last year, we are trying to make a family but we had a miscarriage.
i have health problems, i have cysts that have to be removed, so travelling would give a pressure on it.
can someone give me advice how to deal with it and how to write a letter?
thank you
 
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