Applying for a Visitor visa and your total stay will exceed 12 months?

If you already hold a tourist visa, working holiday visa or a bridging visa, you may be thinking about lodging a tourist visa to extend your stay in Australia. However what most people don’t realise is that there is a consecutive 12 month rule of your stay in Australia which may upset that plan. This rule only applies to those visas listed above and not to the majority of other temporary visas such as 482, 457, 485, 500 etc.

If you have already been in Australia for some months and wish to apply for a tourist visa to stay longer, if that application will mean you will stay in Australia for more than a consecutive 12 month period, it may be refused unless there are exceptional circumstances why you need to stay in Australia.

For example;

James has been in Australia on a working holiday visa for 11 months but he wants to stay longer to see more of Australia. He applies for a visitor visa for this purpose for another 3 months. His application is refused since the grant of a 3 months visa would have resulted in him staying in Australia for more than a consecutive 12 month period.

Mary is in Australia on a visitor visa, its one of those 3 year multiple entry visas which allow the holder to stay in Australia no more than 12 months in an 18 month period. After 11 months of being here she does not want to leave so applies for a new visitor visa for a further 6 months. Her application is refused, for the further 6 month requested period will mean that she has stayed in Australia for more than a consecutive 12 month period.

What are exceptional Circumstances?

Under policy the following circumstances are listed but they are only a guideline and do not reflect all the endless possibilities.

  • the death, serious illness or serious medical condition of a member of the visa applicant’s close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support
  • a change in the applicant’s circumstances (or the circumstances of an Australian resident) that:
    • could not have been anticipated at the time their visitor visa was granted and
    • is beyond the visa applicant’s control and
    • where not granting a visa would cause significant hardship to an Australian resident or citizen.

If you leave and come back before your visa expires?

Its fairly obvious that if you take a trip to N.Z or somewhere, re enter Australia on your current visa and then apply for a visitor visa, then of course the 12 month stay in Australia consecutive rule cannot apply to you. However there is the Genuine Temporary Entrant test case officers will look closely at.

The policy of this test is as follows;

“If a visa holder: 

  • was in Australia for less than the period authorised by the visa and
  • is now seeking a further visa 

– for example, a previous Working Holiday visa holder was in Australia for 6 months of their 12 month visa, but left before their visa ceased – consideration should be given to the previous period of stay, the stay period requested and the intent of the visit. An unused stay period on a previous visa may support the applicant’s claims as intending a genuine temporary stay. Officers should be mindful of the differences between the conditions of the two visas (for example, work rights), and the policy relating to de facto residence (refer to De facto residence.)

In all cases where the applicant has recently spent 12 months or more in Australia cumulatively but not consecutively, officers should consider carefully whether the applicant continues to satisfy the genuine temporary stay requirement – refer to Genuine temporary stay. For example, persons returning after a short stay outside Australia and wishing to remain for a significant period may have difficulty meeting the genuine temporary stay requirement.”

In summary then, if you are planning to stay longer and you hold one of those visas we listed above then it would be best to depart Australia and re enter whilst that visa is still valid. Then in lodging a visitor visa you will not have to prove the exceptional circumstances rule which is difficult to pass. However it will be vital that you can convince a case officer that you are indeed a genuine visitor and not trying to stay here to work.

Zoe He