Misunderstanding led to Overstay

[Rozelle]

Hello

 

 

Before I start writing my story I'd like to say that I understand how

the Immigration department works here in Australia and therefore I

honestly think there's nothing I can do rather than leave the country

with a 3 year ban. But I really want to fight till the end because I love this country.

 

 

 

 

 

 

 

 

I came to Australia this year and stayed for 4 months on a Visitor

Visa, a visa than ran out at the beginning of June. Just one day

before my visa expired I applied for a Student Visa onshore. As I

didn't have enough money on my account yet, I went to the immigration

office and told them that I wanted to apply for a Bridging Visa D.

Reason is that I didn't have the money to pay for the Student Visa at

that moment, but a transfer from my Spanish bank account was on its

way so I would be able to pay for it a few days later.

 

 

I was told in the office that I should apply for a Student Visa

instead. They told me that if I applied right there in the office, I

wouldn't need the CoE and that's what I did.

 

 

A few days later I received a notification saying that my application

was invalid because they couldn't take the money from my credit card.

I went to the bank and they told me that my credit card was blocked

because they detected a scamming device in one of the ATM's I used to

withdraw my money and that a new credit card would take a few days to

arrive to my bank branch.

 

 

explained this by email to immigration and told them that I could

pay cash or bank transfer, but my new credit card would take a few

days to arrive. They told me that credit card was the only valid

method, so my application was declared invalid.

 

 

I went to immigration to fill the application again and this time I

received an email saying that the application was invalid again

because without a CoE they could not grant me a

visa (they told me a totally different thing in the office) and that because of the application being invalid I was not under and bridging visa and therefore I was an unlawful citizen

 

 

That same day I paid the CoE and answered the email providing my CoE

number hoping that everything was fine.

 

 

Never got an answer back.

 

 

 

 

Now I realize that my mistake was providing my CoE by answering the email instead of filling the Student Visa form again with everything updated.

 

 

 

 

 

 

 

 

My course started just a few days after and I've been attending to

school since then. I have 80% attendance and I'm really interested in

this course because I need it to find a job in my home country. But

because a big misunderstanding I'm currently under no visa

 

 

 

 

I'm aware that many people come to Australia and try to overstay to

earn more money or whatever. But that's clearly not my case. I can

prove that all the details from my story are 100% true.

 

 

I can provide a certificate from my NAB bank confirming that the credit card story is true

 

 

I can provide a certificate from a Hotel in the Canary Islands in which one of the managers confirms that with this course I would be offered a job there

 

 

I can prove that my school attendance is satisfactory

 

 

 

 

I've spent a lot of money on my course and I really need the certificate before I go back to my country. And I have the feeling that the visa was going to be granted with no problem at all. It was just invalid for a

reason that I couldn't predict and a big misunderstanding

 

 

I know that I should've contacted the immigration office earlier, but

I was really scared as I was unlawful citizen out of nowhere and I've

never had any kind of problem with police or something. I really

didn't know what to do. Now that my first school term is over I have

time to solve this situation.

 

 

 

 

I'm not one of those overstayers who plays the "oh, I didn't realize I

had to leave" card. My situation is very different and I've spent a

lot of money and effort to study that course as it would open many

doors for me back in my country.

 

 

 

 

Is there really no chance to fix my situation here?

[Michael Arch]

Rozelle the situation you present is obviously complex, and I would be hesitant in any event to offer "case-specific" advice through an on-line forum.

 

I would make the following observations about your circumstances:

 

1. Under the Schedule 1 requirements that presently apply to student visas (Subclass 500) which are found at Item 1222, in order to be able to apply for a student visa from "onshore" in Australia you must be the holder of a substantive temporary visa (in other words, not a bridging visa). Otherwise the student visa application must be made from offshore.

 

2. A person who is does not hold some form of substantive visa may not be granted a student visa unless (generally) the last visa that was held was a student visa and the further application for a new student visa is made within 28 days of the date that the previous student visa came into force.

 

3. Under section 46(1)(d) of the Migration Act, a visa application is not valid unless any visa application charges have been paid. My opinion is that the way that the law would almost certainly be read is that the Department's finding that your visa application was invalid would most likely be upheld.

 

4. In terms of the possibility of your being subject to a 3 year exclusion period: Under Public Interest Criterion 4014, you could potentially be subject to this exclusion period if you leave Australia with the status of an "unlawful noncitizen" or as the holder of a Bridging Visa C, D or E.

 

5. There is a possible, theoretical "fix" in the sense that the exclusion period might be "waived" in respect of a future offshore visa application if you can show either that there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible NZ citizen.

 

6. Possibility for another fix? If you remain in Australia as an unlawful noncitizen, but form a relationship with an Australian citizen, permanent resident or eligible NZ citizen and you can show that there are compelling circumstances (e.g. that you and your Australian partner or spouse have a child who is an Australian citizen) then there is a possibility that you might be able to get a partner visa which would give oyu a pathway to permanent residency and ultimate citizenship.

[Rozelle]

Thank you for your answer. It really helped me to understand my situation a little bit more.

 

I thought about overstaying for 2 years until I finish my course, but I'm afraid it's too risky and will probably get caught as I'm working as part time sports coach for children and my ABN and TFN numbers will expose me at the end of the financial year and the DIAC will arrest me

 

Is there any chance I can contact the DIAC and tell them what happened? Otherwise the only thing that I can do is leaving the country and trying to get a waiver so I can apply for a Student Visa offshore. But nobody guarantees that I can get that waiver. In fact I guess it would be reallty difficult to get.

 

 

I have a fantastic relationship with the kids and their families, but I guess there's nothing they could do either

[wrussell]

I posted this response on another forum:

 

Dear Rozelle

 

Some notes:

 

NEVER take migration advice from DIBP officers. If you receive incorrect advice, you bear the consequences for acting on it.

 

From your post, your circumstances are not clear.

 

The value of any studies undertaken in the absence of a visa permitting study would be problematic.

 

In respect of the credit card matter, did you take advice about using BPay?

 

Lodging an invalid visa application would not on its own render you liable to an exclusion period.

 

May I suggest that you consult a registered migration agent to find a way forward?

__________________

Westly Russell

Registered Migration Agent

Number 0316072

pinoyau.com

 

It appears now that the OP is perhaps not as much an innocent victim as I previously thought.

Edited September 20, 2016 by wrussell

[Rozelle]

Hello

 

I went to No Borders Group offices and they basically told me that there's nothing they can do.

 

 

When I applied for the Student Visa I was still on a Visitor Visa, but when the application was declared Invalid and I submitted it again, I was under no visa anymore. And now I've obviously overstayed for the first term of the course so I guess that the 3 year ban is the most likely scenario if I talk to the DIAC and leave the country by myself.

Edited September 20, 2016 by Rozelle

[George Lombard]

Hi Rozelle,

 

You've had pretty solid advice from Michael and Wesley - looking forward the main issue for me is whether the course has some intrinsic value for you or is it just a visa extension mechanism? If the course is something you really want to do then Michael's advice might be helpful - the Department has some helpful policy about students wanting to avoid PIC 4013 and 4014 - but if you're just interested in staying then I would suggest you consider New Zealand as a friendly alternative.

 

Cheers,

 

George Lombard

[SOMV]

I am afraid that New Zealand will not be a very friendly alternative if your answer to the question: Have you ever overstayed a visa or been deported or been banned from re-entry in any other country is "Yes".

 

I am just mentioning this as NZ is, in my opinion, far tougher than Australia when it comes to character issues.

 

Cheerio,

Veronika

 

 

Hi Rozelle,

 

You've had pretty solid advice from Michael and Wesley - looking forward the main issue for me is whether the course has some intrinsic value for you or is it just a visa extension mechanism? If the course is something you really want to do then Michael's advice might be helpful - the Department has some helpful policy about students wanting to avoid PIC 4013 and 4014 - but if you're just interested in staying then I would suggest you consider New Zealand as a friendly alternative.

 

Cheers,

 

George Lombard

[Wei Shu]

Q: I came to Australia this year and stayed for 4 months on a Visitor

Visa, a visa than ran out at the beginning of June. Just one day

before my visa expired I applied for a Student Visa onshore. As I

didn't have enough money on my account yet, I went to the immigration

office and told them that I wanted to apply for a Bridging Visa D.

Reason is that I didn't have the money to pay for the Student Visa at

that moment, but a transfer from my Spanish bank account was on its

way so I would be able to pay for it a few days later.

 

 

I was told in the office that I should apply for a Student Visa

instead. They told me that if I applied right there in the office, I

wouldn't need the CoE and that's what I did.

 

A: the officer of the DIBP was right, you should apply for a student visa before the expiry of your visitor visa and you wouldn't need to have a COE for a valid application to be lodged.

 

Q: A few days later I received a notification saying that my application

was invalid because they couldn't take the money from my credit card.

I went to the bank and they told me that my credit card was blocked

because they detected a scamming device in one of the ATM's I used to

withdraw my money and that a new credit card would take a few days to

arrive to my bank branch.

 

A: This was an unfortunate situation, however who to blame? Sorry for my wording, but I have to say there are legal requirements for a valid application to be lodged, no VAC payment means no valid application.

 

Q: explained this by email to immigration and told them that I could

pay cash or bank transfer, but my new credit card would take a few

days to arrive. They told me that credit card was the only valid

method, so my application was declared invalid.

 

A: sure you have a discussing with them regarding the way to pay your VAC, but it certainly a bit too late for you to savage the application, since it had been returned as invalid already.

 

Q: I went to immigration to fill the application again and this time I

received an email saying that the application was invalid again

because without a CoE they could not grant me a

visa (they told me a totally different thing in the office) and that because of the application being invalid I was not under and bridging visa and therefore I was an unlawful citizen

 

A: Actually the Department got it right, and yes your application was invalid again, for different reason, because you had no visa, and your previous visa was not one of the prerequisite visas.

 

The DIBP also right that no visa can be GRANTED without a COE, and you are an unlawful (non) citizen because of invalid application, and they didn't grant you a BVE.

 

Q: That same day I paid the CoE and answered the email providing my CoE

number hoping that everything was fine.

 

A: Sure you didn't consult with a migration agent, paid fees to get a COE at this stage simple waste your money, because you can not lodge a valid application.