LEGAL ADVICE LETTER TO CLIENT
Your last sUbstantive visa 300 “temp visa permitting the holder to travel to, enter and remain in Australia for 9 months from date of granr (300.511) Condition
8515-the holder of the visa must not marry or enter into a de facto relationship before entering Australia.
8519-the holder must enter into the marriage in relation to which the visa was granted within the visa period of the visa.(300.612)
8502-the holder of the visa must not enter Australia before the entry to Australia of a person specified in the visa. (300. 6 13)
Alice has complied with 2 conditions out of the stated 3 conditions. She breached 8519 condition because event
occurred which was out of her control.
?11 Apply for a waiver of condition 8519 based on PAM …..
Minister may waive a condition of a kind described in 41(2)(a), since the person was granted the visa subject to the condition, compelling and compaSSionate circumstances have developed over which the person had no control and that resulted in a major change to the person’s circumstances (check PAM)
Schedule 3 Additional criteria applicable to unlawful non-citizens … This schedule apply to you since you have become unlawful for more than a year since your last substantive visa was granted. You would be subject to criterion 3004. What this meant is that if you are applying for a partner visa in Australia and you do not hold any substantive visa at the moment because it has expired then schedule 3 still allow you to do so if you can demonstrate the reasonable grounds when you became unlawful and because of factors beyond your control. The Minister would look at your compelling reasons in order to make a decision on your case.
Compelling: there are Australian citizen children from the relationship; The couple have been together in the relationship for at least 2 years
3004(C) “because of factors beyond his/her control” 3004(d) “compelling reasons exists for the visa to be granted” 3004(e) “requires applicant had complied substantially with conditions of last entry permit or visa” 3004(f) “requires the visa applicant to satiSfy the criterion that she would have qualified for the visa, had she applied for the visa before her substantive visa expired” -in this case, you have been unlawful for some time and is applying for a partner visa, and there is substantial evidence that you have been living together as partners for quite sometimes and had married that partner, then the relationship would considered to be existed before the person became unlawful 3004(g) “applicant will intend to comply with any condition subject to which the new visa is granted” -if applicant is able to show that she has a history of substantial compliance of the last visa conditions. Sch 2 (820.211(d» applicant satisfy sch3, unless minister is satisfied that there are compelling reasons for not applying those criteria. 3005 (once only) -applicant can make use of Sch3 once only. Once visa is granted by having to utilise sch 3, she can no longer use it again if the person has become unlawful again, regardless of the length of unlawfulness the next time.
PAM -15.3 About criteriJl3003(c)-(b) and 3004(c)-(b)
Criteria:
)004 (d tn(h)
include subjective elements, wftich means that:
a decision on whether an applicant satisfies these criteria will not necessarily be clear cut or beyond dispute a decision maker will nero to exercise judgment, assess all the circumstances of the applicant against the meaning and intention of the criteria, and fonn an opinion as to whether the criteria are satisfied. Criteria 3(0) and 3004;
renect a recognition that there are circumstances in which non-citi7.ens should be pennitted to remain despite, for example, having stayed beyond the period of their visa enable the circumstances of applicants to be taken into account, for instance where circumstances mitigate against the fact that the applicant has
remainro in Austral ia without a substantive visa. The meaning and intention of each of the (c) -(h) items of3003 and 3004 are discussed separately below. While all 6 items must be satisfied for criterion 3003 or 3004 to be satisfiro, the reasons why an applicant meets one item may also be relevant to the consideration of whether they meet the other items.
] 6 APPUCANT’S CIRCUMSTANCES MUST HAVE BEEN BEYOND TH EJR CONTROL
16.1 Two separate considerations
Criteria 300J{c) and 3004(c) require the decision-maker to be satisfied that the applicant became an illegal entrant or a person without a substantive visa because offactors beyond the applicant’s control.
Two requirements must be satisfied:
there must be factors that caused the applicant to become an illegal entrant or a person without a substantive visa and those factors must have been beyond the applicant’s control. The element of causation is important. It is not sufficient that factors beyond the control of the applicant existed. Those factors must have caused the applicant to become an illegal entrant or a person without a substantive visa
] 6.2 Meaning of ‘beyond the appliant’s control’
The phrase ‘factors beyond the applicant’s control’ is to be given its natural. meaning and considered against all ~Ievant circumstances ofthe applicant
The test is whether the applicant became a person to whom 3003 or 3004 applies because of circumstances which were ~extemal” to the applicant and over which they had no control.
Some circumstances may clearly meet the test, tOr e.xample where a serious accident or illness renders the applicant incapable of1Ilm.:ing an applicatioo.
Other situations will be more difficult to assess, for example where an applicant claims to have:
been unaware that they were an illegal CfItrnnl or without a substantive visa or
misunderstood the period during which their isa WllS in effect or
misunderstood the conditions attached to their visa.
Claims by an applicant that they W~unaware they we~an illegal entranl, or without a substantive visa. should be considered 00 a case by case basis. The mere fact that an applicant makes such a claim would not, on ilS own, constitute a factor beyond their control. In some circumstances an applicant’s lack ofawareness may, however, be attributable to something over which the applicant had no control, for example when the applicant’s visa was nOi com:ctly evidenced and the visa ceased on a date earlier than the date specified on the visa label.
Similarly, claimed misunderstandings relating to when a visa is in effect or to the conditions attached to a visa should be considered on a case by case basis. It is reasonable to assume that a visa holder is aware ofthe period covered by the visa and the conditions attached to the visa unless there is evidence to the contrary. An example of when there would be evidence to the contrary is whl.’Jl file records indicate that incorrect advice was given by the department
17 COMPELLING REASONS TO GRANT HIE VISA MUST EXJST
Criteria JOO3! tl) and 30().t( d) require the decision-maker to be satisfied that there are compelling reasons for granting the visa
‘Compelling’ is not defined in migration legislation and should be given its normal dictionary meaning, wbich is specified as “brought about by moral necessity”.
Compelling reasons may stem from compassionate factors, or may arise, for example, from the applicant’s circumstances or the circumstances of another person.
Circumstances beyond the applicant’s control may also constitute compelling reasons for granting the visa. For example, if the applicant became an illegal entrant, or without a substantive visa, due to a serious accident or illness, such might, depending on the circumstances, satisfY both 300J(cll3004illand 30()3(d)~,
All the circumstances of the ca~e, individually and cumulatively, should be considered in determining whether there are compelling reasons for granting the visa
Consideration ofthe likely consequences of not granting the visa mal’ assist in considering whether particular circumstances are compelling.
8.3 Why did tbe appliCJlDt not comply
In some cases, the reasons why the applicant has not complied with a visa conditionls might be relevant in determining whetJJer their compliance ~as “substantial~.
For instance, an applicant may be considered to have ‘complied substantially’ if they would have complied wiJh the conditioo but for some circumstances beyond their control which lead to their non-compliance. For example, an applicant who had failed to meet the “course requirements” condition of a student visa, due to a serious accident or illness, may nevertheless be found to have been in substantial compliance with the study condition (bowever, in this specific example, also see PAM): IcnGuideG -Stud~nts VISas -Visas application & related procedures -Satisfving course requirements -If the student lulls ill).
Minister consider the Genuine of the relationship The Minister is considering an application for a partner visa, will consider all of the circumstances of the relationship: R1.1SA -spouse R1.1SA(3) -financial aspects of the relationship (joint ownership of real estate/major assets, joint liabilities, financial commitments, basis of any sharing day-to-day household expenses)
(b)
Nature of household: (living arrangement of the persons, sharing responsibility for housework)
(c)
Social aspects of the relationship (opinions of friends! stat dec, joint social activities)
(d)
Nature of persons’ commitment to each other (duration of the relationship, length of time lived together, companionship and emotional support)
3.3 Reg. USA(3) -four factors (PAM)
In accordance with regulation I.!S!A)(2), in all cases, decision makers are to take into account collectively the four factors specified in regulation I.ISA(3)( n)-( d), that is, the:
financial aspects of the relationship
nature of the household
social aspects of the relationship and
nature of the persons’ commitment to each other.
By considering all four factors, it will ensure consistency and fairness across all visa classes, including those that are not in the partner category of visas.
By doing this, officers will be able to satisfy the s5F(2) requirement that the:
relationship is ‘genuine’ and/or ‘continuing’
parties have a ‘ mutual commitment to a shared life to the exclusion of all others’ and
partners are living together (or at least not living apart permanently).
The ofticer’s assessment must not be based by only comparing how many factors listed in regulation 1,ISAG) are satisfied against how many are not satisfied. Rather, it involves officers:
c.oosIdcring cadi individual relationship against all factors listed in regulation 1.15A(3) and _ DolICalUIJl8D) 0Ihc:r relevant information provided by the applicant (or infonnation otherwise available to officers), assessing whether or not.. !he of s5F(2) are met and that a ~_ro.:J.itlillll~hJr exists.
the fmancial aspects of the relationship may be evidenced by:
loan ~tsfor real estate, cars, major household appliances or any other agreements relating 10 finances 01″ purchases (for example, properly pm::hased b) the parties as tenants in common) opcralioo ofjoint bank accounts -evidence that the accounts have been operated with reasonablc frequency and fOf” 8 reasonable period oftime would be given more weight than just opening such accounts pooling of 11nancial resources, especially in relation 10 major financial commitments legally binding financial obligations that one party owes to the other, for example, as guarantor for a loan, exisling power of attorney (these can be specified to cover various things, such as financial and medical) the basis ofsharing day to day household expenses, for example, whether each party is ‘responsible financially’ for their own ,’penses only and expenses are not pooled. 5
Factor 2 -The DJlture or Che bousebold
For regulation I. ISA’ 3 )(bl. the nature of the household may be evidenced by:
joint ownership of residential property
joint residential leases
joint rental receipts
joint utilities accounts (electricity, gas, telephone)
correspondence addressed to either or both parties at the same address
shared responsibility for care and support of children
shared responsibility for housework.
6 Factor 3 -Social aspects ofthe relationship
For regulation 1.1 5A()(c), social aspects may be evidenced by:
evidence that the relationship has been declared to other government bodies and commercial/public institutions or authorities and acceptance of these declarations by these bodies
statements of parents, tamily members, relatives, friends and other interested parties. Statements in the form ofstatutory declarations should be encouraged on the basis that, as a legal document, they carry more weight. (Note: The Department provides 8 specific form for this purpose -see form 888.)
joint membership of organisations or groups, documentary evidence ofjoint participation in sporting, cultural, social or other activities joint travel and plans for the future whether the parties present themselves as a couple socially.
Officers should, however, take into account to what extent, ifany, the laws andlor traditions of the applicant’s horne countty may discourage the parties from openly admitting the existence of the relationship.
7 Factor 4 -The nature of the commitment
7.1 Mutuality
For regulation I 15A<J)(d), fficers should regard the ‘nalUre-oftbe partners commitment as requiring an assessment ofthemuiliality of their commitment to each other, having regard to (bul nollimited to) the four factors listed, namely:
the duration ofthe relationship
the length of time the parties have lived together
the degree of companionship and emotional support that the parties draw from each other
whether the parties see the relationship as for lite long term.
The nature (mutual ity) of the relationship may be assessed having regard to, for example:
the partners’ knowledge of each other’s personal circumstances (this could include background and family situation and could be established al interview) andlor evidence of intentions that the relationship be long term (for example, by the extent to which the partners have combined their affairs, and the extent to which they have provided for each other, such as being beneficiary to each other’s will andlor superannuation).
If parties who are (or until recently. were) living separately claim that their separation is (or was) not permanent, officers need to consider their reasons for the (temporary) separation -see PAMJ: Act -Act-defined tml1S -~5F -Spo~.
7.2 The length of the relationship
For regulation 1.15A(3)(dlli), the duration of the relationship is simply one factor in assessing the mutuality of the parties’ commitment to each other. That mutuality of commitment is, in turn, simply one factor in assessing whether the relationship overall meets s5F(2) requirements to be in a ;,J!illJ)~ r~l~tinn~lJ.i.rt.
There is no specific length oftime prescribed in thisfactor. Although the length of time the parties have been married should be taken into account when assessing the mutuality of the relationship, all other factors under 1.15A(3)(d) must also be satisfied.
8 Spouse relationship policy & procedures
8.1 Thorough assessment required
The existence (or otherwise) of a ‘r~’\h~ rJ,laJHon<;1}in can have a significant impact on a person’s eligibility for a visa, particularly a permanent visa. Officers are expected to examine applications carefully ifvisa eligibility:
derives from the existence of a ‘!j1llll,C rdalltlll,hlp or
depends on there being no ‘i1l”1.,,, rdatj(lll iJin.
Othtr relevant Partner category ,iss provisions
Related Schedule 2 regulatory provisions
For the Partner category visas (visas 300, 3091100 and 820/801 ), there are 3 specific Schedule 2 visa provisions or policy oonsidemion’ (summarised below) to which Oftlcers assessing cenain ‘p'(l).b… r \J.;ttl<ln. hil” are expected to have particular regard.
(e) Decision makers must decide the weigJIt to be given to each factor or characteristic. However, they are not, limited 10 the four factors at regulation 1.ISA(3), but can consider any additional infonnation that is reasonable and practicable on which a decision can be based.
820/801 eligibility for Alice You are eligible for this subclasses because you are the spouse of Alex and this has the definition in s.5F which directly relating to who you are. You two have married to each other that is valid under the marriage Act 1961 recognised by the Australian law, you have mutual commitment to a shared life as husband and wife. It is a genuine relationship and you live together (R1.15A)
(820.211)(2) -you satisfy this subclause if you are the spouse of Alex who is assumingly over 18yo at the moment and is an Australian permanent resident In your situation, it is evidenced that you have been unlawful for more than a year now. However you have indicated to me that you and Alex got married last month and that you two had lived together before that time for more than a year. Therefore you may be able to still apply for the partner visa despite the fact that you have been unlawful a quite some time. SpeCifically in schedule 2 subclause 820.211(2)(d)(ii) stated that if you are not the holder of a substantive visa then you would need to meet additional criteria in schedule 3 for unlawful non-citizen. Schedule 3 will be discuss in more detail in later Since it is indicative that you two have lived together for more than 1 year before your marriage. You must provide sponsorship form indicating that Alex is your sponsor and 2 statutory declarations, declared 6 weeks prior to your application for partner visa to testify the genuineness of the relationship
3 About reg. 1.1 5A(2)
3.1 Reg. 1.15A(2) & s 5F(2)
Under regulation 1.15A( I}, regulation I. I 5A(2} applies to visa 309/100 and visa 820/80 I applications. Decision makers must have regard to all
circumstances of the relationship, but they also must decide the weight to be given to these circumstances (and the listed factors).
Regulation I.ISA(2) provisions relate to assessing if, for sSF of the Act:
the relationship is ‘genuine’ and/or ‘continuing’
the persons have a ‘mutual commitment to a shared life’ and
the parties are Jiving together (or at least not living apart permanently).
Note: Despite the wording ofs5F(3) of the ACL because the validity of the marriage for migration law purposes is an issue of/act, officers do not have 10 consider s5F(2)(a} against regulation 1.ISAm. For policy and procedure lor sSF(2)(a), see PAM): Act -Act-defined terms -s5F -Sppuse:.
Unlawful non-citizen s.14-unlawful
valid application
s.46
After the child is born (1 more month)
s.78-children born in Australia: ” if a child born in Aust is a non-citizen and at the time of birth one of the child’s
parents holds a visa and the other parent does not hold a visa, the child is taken to have been granted, at the time of
the birth, a visa of same kind and class and same terms and conditions as that visa”
It is possible if Alice and Alex want to wait for another month before applying.
Look at citizenship by birth???
(b) she suffered at the hands of Robert and obtained an
a Magistrate at the Melbourne istrates’ Court? yet. Violence exist during marriage only. Therefore she still would not be able to apply for
-look at definition of “physical violence”, “interim intervention order”
PAM 3, Migration Regulations, division 1.5 clause 3 Purpose of the family violence provisions