Onshore spouse visa for overstayeyrs or bridging visa holders

The criteria for grant of an onshore Spouse visa may be satisfied where the spouse visa applicant has been in a "long-standing" partner relationship with an Australian Citizen or Australian Permanent Resident.

This is despite a visa applicant no longer holding a substantive visa in circumstances where (1) they have simply over-stayed their last visa or (2) where a visa applicant had lodged another visa application whilst in Australia and that visa application has been refused.

An example of (1) above would be where an onshore visa applicant has held a Working Holiday visa that has expired.

An example of (2) above would be where an applicant has lodged an application for another visa (such as a sub-class 457 Employer Sponsored application) whilst in Australia and that application has been refused.

In the latter situation [(2) above] where an Applicant has had a visa application refused whilst in Australia there are a very limited number of further visas that the Applicant may apply for whilst in Australia.

Interestingly, the limited visas that an Applicant may apply for (2) above now include (following recent amendments to the Migration legisaltion) either a Partner (temporary) residence visa (Class UK)-which is a subclass 820 Partner (temporary residence) visa or Partner (Residence) Class BS-which is a sub-class 801 Partner (Permanent residence) visa.

The Migration Act provides these limited classes of visas may be applied for by an Applicant who is onshore and has had a visa application refused whislt onshore:-

(a) Partner (Temporary) (Class UK);
(b) Partner (Residence) (Class BS);
(c) Protection (Class XA);
(ca) subject to subregulation (3), Medical Treatment (Visitor) (Class UB);
(e) Territorial Asylum (Residence) (Class BE);
(f) Border (Temporary) (Class TA);
(g) Special Category (Temporary) (Class TY);
(h) Bridging A (Class WA);
(j) Bridging B (Class WB);
(k) Bridging C (Class WC);
(l) Bridging D (Class WD);
(m) Bridging E (Class WE);
(ma) Bridging F (Class WF);
(mb) Bridging R (Class WR);
(n) Resolution of Status (Temporary) (Class UH);
(o) Resolution of Status (Class CD);
(p) Child (Residence) (Class BT).
Note Section 48 of the Act limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused.


In order be granted a spouse visa in these two situations Applicants need to ensure that the last substantive visa held by them did not contain a "no further stay" condition as this would, in most circumstances, prevent them lodging a subsequent visa application whilst onshore.

The Department of Immigration's policy on interpreting "long-standing" relationship in the context of a spouse visa application where the applicant does not hold a substantive visa is set out below:-

"…the ‘compelling reasons’ provision, allows certain persons unlawfully in Australia, but in relationships with Australian residents, to legalise their status if compelling reasons exist.

In assessing whether or not there are compelling reasons, officers are to take into account the circumstances that the Minister considers to be compelling. These circumstances are that:

• there are Australian-citizen children from the relationship or

• the applicant and their sponsor are already in a long-standing partner relationship (taken to be a relationship which has existed for at least two years.)

In these circumstances, it is considered the hardship that could result in applying the Schedule 3 criteria is sufficiently compelling to justify not applying the criteria.

This does not mean only those cases with such circumstances should benefit from the waiver. It would be an error of law to apply policy inflexibly. Family Section support a broad approach which takes into account all of the circumstances of the case. Other examples that may be compelling reasons include:

• maternity issues where departure from Australia could complicate matters for the applicant

• age related maternity issues for the applicant

• separation issue for an extended period from the sponsor

• the applicant is the sole breadwinner and their departure would significantly impact on the sponsor's welfare
• negative impact on step-children's formative years if the applicant departs

• DFAT warnings on community violence in the applicant's home country which makes it unsafe for the applicant's circumstance

• hardship caused to the relationship between the sponsor and the applicant's children if the applicant and the children have to leave Australia to make an application offshore

• the sponsor feels compelled to leave Australia with the applicant, leading to loss of employment and income in Australia and resulting in serious financial and other difficulties for the family unit when they eventually are able to return

• reasons concerning safety for the applicant and the sponsor in the applicant's home country if required to submit application offshore

• the applicant's family unit and the sponsor would suffer significant psychological and material hardship if they were forced to depart the country

• the sponsor relies on the applicant for ongoing and continuous care.

Note: This list is not exhaustive and officers are, or course, required under s54 of the Act to have regard to all the information in the application."

Should you wish to obtain advice on your particular Australian immigration situation please telephone me to make an appointment.



Andrew Hackworthy
Solicitor/MARN9790738
7/133 Macpherson Street
Bronte NSW 2024
Australia
Tel: 02 9389 2290

What to do if less than 12 mths de-facto relationship?

One of the limitations in applying for an Australian Permanent residence visa [either as a de-facto spouse of a Primary Applicant or when applying for a Partner (temporary residence) visa based on the existence of a de-facto spouse relationship with an Australian Citizen/Australian Permanent resident] is the need to show 12 months cohabitation.

The usual requirement for these visas is either proof of 12 months cohabitation in a de-facto partner relationship at time of application or proof of marriage (in which case evidence of 12 months prior cohabitation is not required).

There is now an alternative depending on which Australian State the applicant resides in.

Changes to the Migration Regulations provide that proof of 12 months cohabitation in a de-facto relationship is not required where the de-facto relationship has been registered with one of the State relationship registers (NSW, Queensland, Victoria, ACT and Tasmania).

It has been possible to register a de-facto relationship in New South Wales since 1 July 2010.

It is also possible to register a de-facto relationship in several other Australian states (including Victoria).

Relevantly, in New South Wales neither party to the relationship needs to be an Australian Citizen or Australian Permanent resident. This will assist those applicants seeking to be included as Secondary Applicants to their partner's Primary Application for a Permanent Residence visa.

More details on how to register a de-facto relationship with the New South Wales relationships register can be found here:-

http://www.bdm.nsw.gov.au/Pages/marriages/relationship-register.aspx

and here:-

http://www.bdm.nsw.gov.au/Documents/apply-for-relationship-registration.pdf

The Migration Regulations have been amended to make provision for a de-facto relationship which has been registered with one of the particular State relationship registers.

I am now advising my clients who are based in New South Wales and who have less than 12 months cohabitation in a de-facto spouse relationship at time of applying for either a Partner visa or as Secondary Applicant to their partner's Permanent residence application to apply to the New South Wales Department of Births Deaths and Marriages to have the de-facto relationship registered (and to lodge their visa application with a certified copy of the certificate of registration of the de-facto relationship).

This should then circumvent the usual 12 month de-facto relationship requirement where an applicant is applying for an Australian Permanent residence visa or a Partner (provisional) visa.

For those who require more detail of the applicable Migration Regulations these are set out below:-

Regulation 2.03A of the Migration Act now states:-

“ Criteria applicable to de facto partners

(1) In addition to the criteria prescribed by regulation 2.03, if a person claims to be in a de facto relationship for the purposes of a visa application, the criteria in subregulations (2) and (3) are prescribed.

(2) If a person mentioned in subregulation (1) applies for a visa:

(a) the applicant is at least 18; and

(b) the person with whom the applicant claim to be in a de facto relationship is at least 18.

(3) Subject to subregulations (4) and (5), if:

(a) a person mentioned in subregulation (1) applies for:

(i) a permanent visa; or

(ii) a Business Skills (Provisional) (Class UR) visa; or

(iii) a Student (Temporary) (Class UT) visa; or

(iv) a Partner (Provisional) (Class UF) visa; or

(v) a Partner (Temporary) (Class UK) visa; or

(vi) a General Skilled Migration visa; and

(b) the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;

the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.

…

(5) Subregulation (3) does not apply if the de facto relationship is a relationship that is registered under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations.

Should you require any further advice in relation to these useful changes to the Australian Migration Regulations please email or telephone me.

Andrew Hackworthy

B.Comm/Ll.b (UNSW)

Solicitor/MARN 9790738

7/133 Macpherson Street

Bronte NSW 2024 Australia

Tel: 02 9389 2290

Email: hackworthy@optusnet.com.au

Strategies to fast track skilled independent processing

Strategies for fast-tracking processing of non Critical Skills Shortage List Skilled Independent visa applications

by

Andrew Hackworthy B.Comm/LL.B (UNSW)

Australian Immigration Lawyer/Migration Agent Registration Number 9790738

http://www.australianvisas.com.au/

In December 2008, the Australian Minister for Immigration and Citizenship, Senator Chris Evans, announced a range of changes to processing of General Skilled immigration visa applications. These changes came into effect on 1 January 2009.

These changes affect not only General Skilled migration applications lodged after this date but applications lodged before this date where the application has not yet been decided (General skilled migration applications that are currently being processed)

The initial changes provided Priority Processing to occur with preference given to: -

Employer-sponsored permanent migration applications, where skilled migrants are sponsored to go into jobs unable to be filled locally.

Applicants nominated by State and Territory governments,

Applicants who had nominated an occupation on a newly created Critical Skills Shortage List.

On 16 March 2009 the Minister for Immigration and Citizenship announced the following further changes:

-capping the 2008-09 General Skilled Migration (GSM) Program by reducing the number of GSM visas to be granted in 2008/2009 from 133,500 to 115,000 places

-removal of most Trades from the Critical Skills list

How will the changes affect General Skilled Migration applications currently being processed?

Basically if you don’t have an occupation on the revised Critical Skills Shortage List (see below) and are neither sponsored by a State or Territory government nor sponsored by your employer (under the Employer Nomination Scheme) your General Skilled Migration application will not be decided for a considerable period of time (possibly up to 3 to 4 years).

The following is a link to the Critical Skills Shortage List effective from 16 March 2009.

Most trades have now been removed from the list.

http://www.immi.gov.au/skilled/general-skilled-migration/pdf/critical-skills-list.pdf

For Computing professionals the following occupations are considered to be on the Critical Skills Shortage list:- Computing Professionals (not elsewhere classified) 2231-79 specialising in one of the following:-

CISSP, C++/C#/C, Data Warehousing, Java, J2EE, Linux, .Net technologies, Network Security/Firewall/Internet Security, Oracle, PeopleSoft, SAP, SIEBEL, Solaris or Unix

My General Skilled Migration application is currently awaiting decision and is based on an occupation that is not on the revised Critical Skills Shortage List above.

I can’t wait 3 to 4 years for my General Skilled Migration application to be decided. What can I do to ensure that the application is processed as soon as possible?

Either

(1) Search the various State/Territory governments lists of baseline occupations where the State or Territory indicates that it is willing to sponsor for a Skilled Permanent resident visa application (a sub-class 176 or sub-class 886 Skilled Sponsored application) then convince the relevant State or Territory government that you intend to live and work in that particular State or Territory for at least 2 years following grant of your Permanent Residence visa.

Sponsoring State/Territory governments will usually require you to show proof of having visited the particular state, proof of attending job interviews and having received job offers, details of relatives or friends who live in the sponsoring state and proof that you have made enquiries about accommodation in the sponsoring state before they will provide State government sponsorship.

State and Territory governments who may offer nomination are:

• South Australia
• Tasmania
• Victoria
• Western Australia
• New South Wales
• Queensland
• Northern Territory
• Australian Capital Territory

As part of providing Sponsorship some States/Territories will require you to agree to reside in the particular State or Territory for at least 2 years from grant of the Skilled–Sponsored (Permanent Residence) visa and may also require you to consent to monitoring every 6 months.

Or,

(2) An alternative to State /Territory Sponsorship where an applicant desires Priority Processing of their Skilled Permanent Residence application and has lodged a sub-class 175 Skilled-Independent visa application that is not yet decided is to obtain sponsorship by an Employer under the Employer Nomination Scheme. Where an applicant has already lodged a sub-class 175 Skilled Independent visa application that is undecided, where an applicant then lodges a sub-class 121 Employer Nomination Scheme (offshore) visa application based on a current approved employer nomination the Permanent Residence application will be processed as a Priority. The usual visa application charge for an ENS visa application will not apply. The only charge payable will be the filing fee on lodgment of the Employer Nomination Application by the Sponsoring Employer (currently $445).

It is a requirement for an ENS visa application relying on the above provision that the applicant holds a qualification equivalent to an Australian Qualifications Framework Diploma. The writer has lodged ENS visa applications where an Applicant has overseas qualifications and experience (assessed by Trades Recognition Australia) to be equivalent to Australian trade qualifications and the Departemtn of Immigration and Citizenship have accepted these trade qualifications as equivalent to an Australian Qualifications Framework Diploma.

Where the above strategy is successfully undertaken, the Employer Nomination Scheme visa application should be decided within approximately 3 months of lodgment (despite the nominated occupation not being on the minister’s Critical Skills Shortage list) and the time from lodgment until grant of Australian Permanent Residence visa reduced from 3-4 years to approximately 4 months.