In the first introductory part of this article, we looked at the basic issues surrounding visa overstay. In this part, we consider whether it is possible to apply for a new visa.

The starting point is that just because you overstay your visa, it doesn’t mean that you cannot apply for a new visa.  You should be aware that in some instances, there are very strict time limits. If a person is in immigration detention, there are only 2 days to make an application. But leaving the issue of detention aside, yes, it is possible to make an application for a new Visa.

However, it is important to appreciate that when you apply for a new visa, there are certain additional criteria which must be satisfied before the visa is granted. And the reality is, sometimes these additional criteria simply cannot be satisfied.

For example, for some visas, there is a requirement that the period of overstay in relation to the previous visa must not have been longer than 28 days. One particular example is the subclass 600 visitor visa. Ordinarily, this visa would not be granted if the applicant previously overstayed a visa by more than 28 days.

For some other visa subclasses, the requirement is that any period of overstay in relation to the previous visa must not have been more than 12 months.

It is also common that an additional criteria is imposed whereby the Visa applicant must show that he or she overstayed their previous visa for reasons beyond their control, and that there are compelling circumstances to grant the new visa. One particular visa subclass which has this additional requirement is the partner visa. So if you are the applicant for a partner visa, and you overstayed the previous visa, then ordinarily you wouldn’t qualify for a partner visa unless you could show that you overstayed your previous visa for reasons outside your control and that there are some compelling circumstances to grant you a partnervisa.

Can this additional criteria be waived?

The short answer is yes, the Minister has the power to waive the above-mentioned criteria when deciding a new visa application. However, the minister must be satisfied that there are compelling or compassionate circumstances which warrant the waiver. Of course, each case is different, and must be considered on its own merits.

Examples where it may be appropriate to waive the above criteria include cases where the visa applicant has sustained personal injuries and, for example, they were in a physical or mental condition where they simply did not realise that they were overstaying their earlier visa. Similarly, there may be family emergencies where an overstay is unavoidable.

However, it is important that once you realise that you have overstayed your visa, you take steps immediately to regularise your immigration status.

After you have overstayed your earlier visa, if you’d then apply for a new visa and your application gets refused, you can appeal the decision. This is where it becomes very important that you prepare your case thoroughly, and if possible engage the services of a migration lawyer. Because each case is different, a professional can look at the circumstances of your case, and advise you whether it is reasonable to appeal a visa refusal decision, taking into account evidence in your particular case.