Our Client’s visitor visa was granted to return to Australia within 1 month after departure during COVID-19 pandemic despite complications with s 48 bar, PIC 4014, GTE issues etc.
We obtained a visitor visa for a client who first presented at our office as an unlawful non-citizen. His original visa had expired and he lodged his renewal application roughly a week late. This renewal application was returned as invalid and he sought legal assistance from our firm.
We immediately advised him of his options given his situation was affected by a section 48 bar, unlawful non-citizen, PIC 4014, 3 year exclusion period etc. and action must be taken immediately for a three pronged approach to succeed.
The Client first arrived in Australia in 2007 holding a series of student visas before residing in Australia unlawfully from 2011 to 2013. He managed to get a further visa granted in 2016 but he failed to renew this visa on time as it expired in May 2021.
Due to his previous immigration history (he was unlawful and had a previous visa refusal), he was subject to s 48 of the Migration Act 1958 meaning he was unable to lodge any further visa applications (except few) whilst remaining in Australia unless he held a substantive visa. There would have been no issues if he had renewed his visa before his original one expired but, because he was late, this meant that he no longer held a substantive visa and could no longer validly lodge further visa applications in Australia.
His renewal application was returned invalid as he was not aware of this underlying condition.
He had family in Australia but, at the time of approaching us, none were Australian permanent residents or Australian citizens.
Difficulties with this case
This case was extremely complicated. The Client’s immigration status was tainted with the following difficulties:
- record of residing without visa in Australia;
- prolonged residence in Australia since 2007 with no record of departure;
- section 48 bar;
- potential 3 year exclusion period due to PIC 4014;
- no ties to home country;
- border closed in Australia during COVID-19 pandemic.
In our consultation, we weighed up the pros and cons of each option to the Client and, in the end, it was decided that we would take the route of the Client departing Australia first which would at least avoid the potential 3 year exclusion period problem. The Client was aware of the difficulties with applying for a further visa to return to Australia given the difficulties we identified above.
Our three pronged approach involved:
- Applying for citizenship for his son who was born in Australia and had just attained the age of 10;
- Request for travel exemption – given his connection with an Australian child, the likelihood of the travel exemption being granted would be high;
- Apply for a visitor visa
Each step required the success of the previous step.
The visitor visa application was the most difficult with serious concerns surrounding whether he would meet the Genuine Temporary Entrant (GTE) requirement given his prolonged residence in Australia since 2007 (over 15 years), lack of ties to home country, two instances of residing in Australia with no visa showing a history of disregard for visa compliance, and no intention to return to home country after entering Australia.
In very detailed legal submissions, we addressed how the Client still met the GTE requirements.
All three steps went through smoothly. Every win was a small cheer for both our firm and the client. In the end, the entire process took less than one (1) month.
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