What Happens when my Visa Expires?

Life can sometimes get in the way of keeping on top of all our compliance and if you find yourself in a situation where your visa has expired, you may be subject to schedule 3 criteria.  Schedule 3 criteria plays an important role in Australian visa applications, and they serve several purposes.  These criteria are designed to:

  1. Encourage timely applications: The main goal is to encourage individuals who are in Australia on a current visa to apply for a new visa before their existing visa expires.  This prevents them from becoming unlawful residents due to visa expiration.
  2. Discourage overstaying: Schedule 3 criteria discourage individuals from remaining in Australia after their visa has expired, as staying unlawfully could lead to potential problems.
  3. Prevent unlawful benefits: These criteria also ensure that individuals do not exploit the system by staying in Australia unlawfully and then gaining eligibility for a new visa.

It’s acknowledged that certain situations might arise where individuals are left without a substantive visa due to factors beyond their control.  Additionally, there might be compelling reasons for allowing some individuals to stay in the country.

The Framework of Schedule 3 Criteria

Schedule 3 criteria consist of specific guidelines that determine the eligibility for certain visas.  They include provisions like:

  • Time Limits for Application: Criteria 3001 and 3002 establish time limits for applying for a new visa after the expiration of the current visa.  This ensures that applicants act promptly to secure their legal status.
  • Factors Beyond Control: Criteria 3003 and 3004 require that there are valid reasons beyond the applicant’s control for not holding a substantive visa when applying for a new one.  This recognises situations where circumstances prevent individuals from maintaining their visa status.
  • Preventing Multiple Concessions: Criterion 3005 prevents applicants from using the Schedule 3 concession more than once for temporary visas.

How Schedule 3 Works

Schedule 3 criteria consist of five separate criteria (3001 to 3005), each corresponding to a different aspect of visa application.  These criteria apply to most substantive visa subclasses applied for within Australia.

However, not all visa subclasses require adherence to Schedule 3 criteria.  For instance, Child (BT-802) visa applicants and protection visa applicants are exempt from these criteria due to specific policy considerations.

Distinguishing Primary and Secondary Criteria

In most cases, Schedule 3 criteria that are designated as primary criteria may not apply to secondary visa applicants.  For example, Distinguished Talent (BX-858) primary criteria applicants are subject to Schedule 3, whilst not being applied to secondary visa applicants.

Counting the Days: Time Limits Explained

Criteria 3001 and 3002 involve time limits for applying for a new visa:

  • Criteria 3001: Establishes a 28-day limit for application, following the event that triggers the criterion (e.g., visa expiration, unlawful entry).
  • Criteria 3002: Sets a 12-month time limit for application, also following the triggering event.

To satisfy the criteria, applicants must submit their applications on or before the specified time limit expires.  In cases where the deadline falls on a weekend, public holiday, or bank holiday, the application is still accepted if submitted on the next business day.

Beyond Control!

To meet this test, two fundamental requirements must be satisfied:

  1. Causation: There must be factors that directly caused the applicant’s transition into an illegal entrant or someone without a substantive visa.
  2. Beyond the Applicant’s Control: These causative factors must genuinely be beyond the applicant’s control.  It’s not enough for external factors to exist; they must have directly resulted in the applicant’s visa predicament.

The phrase ‘factors beyond the applicant’s control’ is to be interpreted in its simplest form and weighed against the context of the applicant’s unique circumstances.  Essentially, the litmus test is whether the applicant’s situation was shaped by external elements over which they had no influence.

The concept of circumstances beyond the applicant’s control is a cornerstone of an immigration assessment.  It goes beyond legalese, emphasizing the human element in immigration decisions.  Remember, the principle isn’t about offering a free pass, but rather about ensuring a just and compassionate approach to applicants who, through no fault of their own, find themselves in difficult visa situations.  As we navigate the intricate landscape of immigration, this principle serves as a reminder that sometimes, life’s curveballs can deeply impact an individual’s journey across borders.

Final Thoughts

Understanding Schedule 3 criteria is crucial when applying for a visa in Australia.  These guidelines encourage timely and lawful applications while taking into account exceptional circumstances.  By grasping the nuances of these criteria, applicants can navigate the visa process more effectively and ensure their legal status in the country.

Gilton Valeo can answer your questions about Australia’s immigration system

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