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:
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.
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.
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.