Is It Possible to Switch from A Visitor Visa to A Work Visa in Australia?

If you are currently in Australia on holiday or visiting relatives, you may be considering staying longer or to work. You may even have a plan to remain in Australia permanently. If you are considering your options at this stage, it is essential that you understand how the Australian immigration system works. In this article, we will focus in particular on the conditions of visitor visas in Australia, and whether it is possible to switch to a work visa.

Understanding the Conditions Attached to Your Visitor Visa

All visas come with a set of conditions, defining what you can and cannot do. It is important to check the conditions for your own visa. Visitor visas typically have a number of very strict conditions; the conditions relevant to this article are as follows:

• Condition 8101 – No Work – This condition makes it very clear that on a visitor visa, you must not work in Australia. The rules also state that you must not do work that a person would normally get paid for. You will need to ask permission to:
  • o do unpaid work relating and credited to your study if you are studying in a university outside Australia
  • o see how people work in an industry, as long as you are not doing the work yourself

Without permission, you can do volunteer work, incidental work online for your job in your home country, or short-term domestic or care-giving work for a family member.

• Condition 8503 – No further stay – this means that while you are in Australia, you are unable to make a valid visa application for any new ‘substantive’ visa other than a protection visa.
• Condition 8531 - Must leave before visa expiry – this means that visitor visa holders must not remain in Australia after the end of the period of stay permitted by the visa.
• Condition 8558 - Non-Resident – this means that visitor visa holders cannot stay for more than 12 months in any 18-month period.

The most important condition when determining whether you can apply for a work visa in Australia if the ‘no further stay’ condition, as this specifically restricts visitor visa holders from making a new visa application. However, the rules do also state, “You can ask us to waive the condition if there is a major change in your circumstances”.

Can I Waive My ‘No Further Stay’ Condition?

The ‘no further stay’ condition specifically restricts visitor visa holders from applying for most temporary and permanent visa types while they are present in Australia, unless the condition is waived by the Department of Internal Affairs. To request a waiver, you must prove that there has been a major change in your circumstances, which, crucially, must be outside of your control. This prevents a person who wishes to stay in Australia longer from applying for a new visa unless:

• they are unable to travel due to a medical reason
• they have experienced a death or serious illness within close family
• there is a natural disaster in their home country
• there is a war or civil unrest in their home country
• their school cannot provide the course that you were approved for

The rules also provide examples of reasons which would not qualify a person for a waiver of the no further stay condition, including:

• getting married or starting a de facto relationship with an Australian citizen or permanent resident
• failing your course of study
• pregnancy - unless your doctor has advised you not to travel
• Not knowing the condition was attached to your visa

If you do qualify for one of these reasons, then you may be able to have this condition waived, and it may be possible for you to apply for a work permit in Australia. To apply you will need to complete the online form and attach a copy of your passport biographical data page and any documentary evidence to support your claims for requesting a waiver (e.g. medical reports).

What If I Have Been Affected By COVID-19?

If you have been affected by COVID-19, and this is preventing you from returning to your home country, you may be able to apply for a no further stay waiver. The Department of Internal Affairs guidance on this matter states the following, “there has always been an expectation that temporary visa holders are able to support themselves while in Australia.

That expectation remains. The Government encourages temporary visa holders who can’t support themselves, to return home where they can. While international travel options have become more limited, departure is still possible for many. If you cannot depart Australia as planned due to COVID-19 travel restrictions, you need to maintain a valid visa. If your visa has a No Further Stay condition, you will need to request, and be granted, a waiver using the online No Further Stay waiver request form before you make a new visa application”.

Given that many countries have lifted restrictions on travel, you will need to ensure that there are travel restrictions to your home country at the time you apply for a waiver. The situation is constantly changing, and even if restrictions have previously been lifted for your home country, it might be that as COVID-19 cases spike, further travel bans are announced.

Final Words

Having the no further stay condition removed from your visitor visa is not a cast-iron guarantee that you will be able to secure a work visa, as you will still need to meet all of the eligibility criteria required for the work visa route you choose, and even then you will need to be selected to apply. For this reason, it is recommended that you work with an immigration lawyer who can explain your options based on your circumstances, and will manage the process of applying for a new substantive visa on your behalf. Whichever route you take, be careful to always remain within the conditions of your current visa, and any breach, no matter how small, may lead to a refusal of a new visa application in the future.