This is Part 2 of our Australian migration law FAQ series, covering choosing a visa, changing visas onshore, bridging visas, visa expiry, proving a partner relationship and application documents. The rules are mainly in the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). Visa requirements change often, so this is general information only; each case should be assessed against the rules in force when the application is lodged.
Choosing and changing visas
11. How do I choose the right visa?
Australia has many visa types, each with its own legal criteria. Choosing a visa usually means weighing your age, nationality, current location and visa, qualifications, work experience, English, family ties, employer sponsorship opportunities and long-term goals. Look beyond what you can apply for now and consider whether the visa can lead to permanent residence or citizenship. For an overview of the main pathways, see Main pathways for migrating to Australia.
12. Can I apply for a different visa while I am in Australia?
It depends. Factors include:
- whether your current visa has a 'no further stay' condition such as 8503, 8534 or 8535;
- whether you currently hold a valid visa (people without a visa can apply for very few visa types onshore; see sections 48 and 48A of the Migration Act);
- whether the visa you want requires you to be outside Australia when you apply or when it is granted;
- policy limits: for example, since 1 July 2024, visitor visa and Temporary Graduate visa (subclass 485) holders generally cannot apply for a student visa onshore.
13. What is a bridging visa?
A bridging visa is a temporary visa that lets you stay in Australia lawfully while a substantive visa application, review or court case is under way. The common types are Bridging visas A, B, C and E, which differ in work rights and the right to travel and return. A Bridging visa B (BVB) lets you travel briefly and come back while you wait; leaving Australia without a BVB can end your bridging visa.
14. Can I stay in Australia while I wait for a decision?
In most cases, if you lodge your application in Australia while your substantive visa is still valid, a bridging visa takes over when your current visa expires. But the bridging visa's conditions may differ from your original visa, so check the grant notice in ImmiAccount to confirm your work, study and travel rights.
15. Can I change from a tourist visa to another visa?
Sometimes, but there are many limits. Many visitor visas carry condition 8503, which must be waived before you can lodge another application onshore; a waiver is granted only if there has been a major change in circumstances beyond your control since the visa was granted. As noted above, visitor visa holders also generally cannot switch to a student visa onshore at present.
Visa expiry and unlawful status
16. What happens if my visa expires?
Once your visa expires, you become an unlawful non-citizen and can be detained and removed. After you leave, depending on how long you overstayed and how you left, public interest criterion 4014 may prevent you being granted many temporary visas for a period, and people who are removed may have to repay the cost of their removal.
17. Can I still apply for a visa once I am unlawful?
The visas available are very limited and usually subject to restrictions such as section 48. A common first step is to apply for a Bridging visa E to regain lawful status, then assess whether any other visa is available. For some visas, the 'Schedule 3' criteria are easier to meet if you apply within 28 days of your visa expiring. Get legal advice as soon as possible if you are in this situation.
Family and documents
18. How do I prove my partner relationship is genuine?
Under regulations 1.09A and 1.15A of the Migration Regulations, Home Affairs considers evidence in four areas: financial aspects, the nature of the household, social aspects of the relationship, and your commitment to each other. Common evidence includes joint accounts and leases, shared expenses, proof of living together, statements from family and friends, and records of long-term contact. For how onshore and offshore partner visa processes differ, see Partner visas compared: the 820/801 and 309/100 processes.
19. Can my children be included in my visa application?
Most visas allow dependent children to be included as secondary applicants, but they must meet age, dependency, health and character requirements. If the child's other parent is not migrating, you will usually need that parent's consent or a court order to satisfy public interest criterion 4015 or 4017.
20. Which documents matter most in a visa application?
Usually identity and passport documents, birth and marriage certificates, qualifications, employment evidence, English test results, police certificates, financial evidence and health examination results. Documents not in English need an accredited English translation. Every document must be genuine and consistent with the information given in earlier applications; inconsistencies can lead to scrutiny under public interest criterion 4020. For more on the character and health requirements, see Part 3 of this series; for refusals and cancellations, see Part 1.
How we help
Chua Tan Associates has practised in Melbourne since 1990. Two of our lawyers are Accredited Specialists in Immigration Law (Law Institute of Victoria). We can help assess your visa pathways, deal with onshore visa changes, bridging visas and unlawful status, and prepare partner and family visa applications. We work in English, Mandarin and Cantonese. For more information, see our Australian immigration law services page.
Chua Tan Associates has practised in Melbourne since 1990, acting for clients in Australia and overseas in English, Mandarin and Cantonese. For a confidential consultation, call +61 3 9602 3988 or email chuatan@tpg.com.au. This article is general information only and is not legal advice.
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