Our Ref: M0001
Your Ref: C0001
15 Buckley Close
Fairfield West 2251
Phone: (02) 9724 7785
5th September 2013
Dear Madam,
Re: Advice on potential visa options with regards to your current circumstances.
Further after our consultation we are writing to provide you with recommended options that are potentially applicable to you in regard to your current circumstances; that are your relationship with Mr Alex, your unlawfulness. We have used the best of our knowledge, understanding, experience and research in writing this letter of advice. Our opinions and advices will not warranty the Minister’s favourable decision; however we will provide you with legal options so that you can proceed to the right decision regarding your circumstances.
We have done some thorough research based information you provided. After some careful review of the Migration legislations as well as the Procedure Advice Manual policies, we advise that your circumstances are most suitable for a partner visa and Bridging Visa A, C and E.( footnote : combine partner visa subclass 820 and subclass 801. Valid application for this visa subclasses will automatically grant you to Bridging Visa A, Bridging visa C and Bridging visa E. Bridging visa will discuss in more detail once applicant agree to proceed with such application) In this letter we will advise you on the criteria used and requirements for this partner visa for you to be eligible. We will explain the migration law as well as the Procedure Advise Manual (PAM) policies where appropriate in your case.
Your background information
To confirm that we had your background information correct, we understood that you are a Malaysian citizen. You came to Australia on 2nd April 2010 with the Prospective Marriage (Class TO) (Subclass 300) visa with Robert. Your relationship with Robert ended shortly after your arrival and no violence was involved.
It is also understood that you met Mr Alex a short time after. He is an Australian Permanent Resident. You moved in with him and commenced the relationship since then. We were advised that you two got married last week and you are 8 months pregnant. Your visa has expired and you became an unlawful non-citizen for more than a year.
Your visa option
Australian visa system was intended for a non-citizen who wanted to enter and stay in Australia (s.45). We believe that a Partner visa is suitable to you because you have maintained a relationship with Mr Alex and married him last week which is validly recognised under the Australian law (marriage Act 1961). We will take you through schedule 2 of the Migration regulations to outline your eligibility for the visa subclasses below.
Partner (temporary) (class UK) (subclass 820)
Partner (Residence) (Class BS) (subclass 801)
Bridging Visa A, C, E
Mr Alex’s eligibility as a sponsor
A non-citizen applying for a partner visa in Australia will need to have a sponsor stated in their application. After careful review of the Migration legislation and thorough research, Mr Alex is eligible to be your sponsor for the partner visa. He has met all the criteria set out for a sponsor. He is also an Australian Permanent resident who is over 18 years of age. He is also the spouse of the applicant (footnote: define spouse, applicant refer to Alice). Evidence of a marriage certificate solemnised under the Australian Law between you and Mr Alex will further support your husband’s eligibility as your sponsor. Last but not least, DIAC has put a limitation on approval of sponsorships if there is evidence that Mr Alex had sponsored two others in this same category mention above (R1.20J). If this will be the case, we will be happy to further discuss with you its alternatives.
Your validity and eligibility for a partner visa
A non-citizen applying for a particular visa will need to validly lodge the application before the Minister considers their eligibility for the grant of the visa. What this meant is that you will need to meet Schedule 1 criteria to validly lodge your application (s.46,s.47(3)). Schedule 1 outlines the prescribed form that you will need to use which is accessible on the internet. There is no Visa Application Charges (VAC) in this subclass 820, however it required you to make a combined application with Partner (resident) (class BS) (Subclass 801) which has the prescribed VAC (footnote: forms and VAC will further discuss in details should you wish to proceed with this partner visa application)
Once you have met all the criteria prescribed in schedule 1 of the regulations, you need to meet further criteria prescribed in schedule 2 which is relating to your eligibility for the grant of the visa. Firstly, we already discussed about Mr Alex’s eligibility as your sponsor earlier in this letter. In your case, you are not a holder of any substantial visa therefore you will be subject to schedule 3 criteria of the regulations (this is listed under the “issues” subheading) for additional criteria required. To further support and strengthen your case, you will need to provide us with substantial evidences of your marriage with Mr Alex which proved to be “genuine”, “on-going” and “committed” according to the Migration legislations. Two statutory Declarations from friends and/or family members indicating that you two are in a genuine on-going relationship and the length of time you have lived together as partner before entering into marriage. Please refer to subheading “genuine relationship” for further clarification (This was derived from PAM 3 policies, s.5F, R1.15A). We will also further discuss this matter in more details in our subsequent consultation.
Next, we also would like to inform you that once we validly lodged in your combined application for a partner visa 820/801, you will automatically get granted a Bridging visa while the Minister is deciding on the merit of your case. (Footnote: bridging visa A, C, E. we will further discuss in detail the bridging visa that most applicable to you). This would make a significant change in your current status. You will be a “lawful non-citizen”. This will give you some piece of mind when you have your child next month.
Evidence of a “genuine” relationship
The success of your case relies on substantial evidence provided to persuade the Minister that it is genuine. In assessing your individual case, the Minister will rely on all the information provided to consider its merit (s.55). PAM policies provide guidance on four aspects that the Minister will rely on in deciding on each case. We will assist you in each of the aspects to create a strong case in your favour. (R1.09A)
•Financial aspects of the relationship (R.1.15A (3) (a));
•The nature of the household (R1.15A (3) (b);
•Social aspects of the relationship (R1.15A (3) (c)
•The nature of the commitment (R1.15A (3) (d)
We will discuss the merit of each of the aspects mentioned above in detail should you wish to proceed with a partner visa application. PAM policies mentioned above is available upon request if you wish to read more about the visa subclass you are considering. (Quote the code of conduct)
Issues that may arise with regard to your application
We have identified a few issues that may arise in regard to the validity of your application. You need to meet additional criteria from the Migration regulations since you do not hold any substantial visa and are considered an unlawful non-citizen (Schedule 3, 3004). One of the criteria required that you have complied substantially with the condition of your last visa. If all the criteria are not met in schedule 3 then the Minister will not consider your partner application because it would deem to be invalid (s.46, s.41, s.45, s.47 (3)) We will assist you in lodging a waiver request persuading the Minister your intention to comply with all conditions prescribed and there are “compelling” circumstances that happened “beyond your control” (sch 2 820.211(2) (d) (ii)).
To establish this ‘compelling’ reasons, we must prove to the Minister that you and Mr Alex have had been living together in a “long-standing partner relationship”. This is where the declaration from friends and family regarding your relationship is significantly important. In your case, you are already 8 months pregnant and it is a risk for you to travel at this stage in your pregnancy. Once you are due, we can further strengthen your case for a partner visa because there are “Australian citizen children from the relationship” (quote citizenship, PAM, s.55, s.78)
In conclusion, we recommend you to consider a partner visa which in our best understanding and knowledge is the best suitable for your current circumstances. However each case is individual and the Minister will decide on its merit based on information and evidences provided that is substantial at time of decision.
Please do not hesitate to call us to further discuss your eligibility for the visa. If you have any questions regarding this letter of advice, it is important to contact us. We are looking forward to your call.
