1. 750 Words
James Morris is a 28-year-old citizen of the United Kingdom living in Australia. On 20 January 2015 he lodged a valid application for a Partner (Temporary) (Class UK) subclass 820 visa while holding a Student (Temporary) (Class TU) Subclass 573 visa. The subclass 573 visa was James’ first student visa, was applied for on 15 January 2012 and was valid until 15 March 2016. The subclass 820 Partner visa was granted on 20 March 2016 on the basis of his de facto relationship with Susan Peak, an Australian citizen.
James has called you to say that the relationship with Susan has broken down and Susan has informed the Department of Immigration and Border Protection (DIBP) of the change of circumstances. James has now received a letter from DIBP asking for him to comment on the information and advising him that his application for the Partner (Residence) (Class BS) subclass 801 visa may be refused.
James has also told you that he has been working as a geotechnical engineer in Melbourne since having completed his four year degree from the University of Melbourne on 15 November 2015. He thinks that the employer might be happy to sponsor him. The company has informed James that they hold a valid Standard Business Sponsorship.
Answer the following questions:
As James has studied full time for 4 years in Australia, can he lodge a valid application for a Skilled (Provisional) (Class VC) Subclass 485 visa? Will he meet the criteria for the grant of the subclass 485 visa? Explain your answers. (300 words, 6 marks)
Can James lodge a valid application for a Temporary Business Entry (Class UC) subclass 457 visa? If so, outline what criteria he will need to satisfy for the visa to be granted. (300 words, 6 marks)
If the DIBP refuses James’ application for the Partner (Residence) (Class BS) subclass 801 visa before lodging an application for another visa, what will be James’ visa status in Australia? (150 words, 3 marks)
2 . 750 Words
Melissa Jones is a citizen of the USA and is in Australia on a Student (Class TU) Subclass 573 visa. Melissa is 22 years old and in July 2016 will complete the third year of a 4 year Bachelor degree at the University of Sydney. She is due to complete her studies in July 2017. Melissa completed High School in California, USA in July 2012 and then took 12 months off to travel and work in Europe before starting her studies in Australia and moving in to live with her mother and step-father in Sydney.
Melissa’s mother has just been granted a Partner (Residence) (Class BS) Subclass 801 visa in Australia as she has been married to an Australian citizen for 3 years. Melissa was listed as a non-migrating dependent on the subclass 801 visa application when it was lodged in January 2015. Melissa’s father is deceased and she has an older sister still residing in the USA.
Melissa previously was not interested in residing in Australia but she has since changed her mind and would like to know her options for remaining permanently in Australia with sponsorship from her mother. She would like to know if there are any issues with her proving she is dependent on her mother and what documentation is required to prove this dependency.
Write a letter of advice to Melissa explaining:
the requirements to lodge a valid and successful application for a permanent visa in Australia based on sponsorship from her mother;
any issues with her dependency on her mother; and
what documents are required to prove dependency.
3 : 750 Words
Brian’s employer used their own Migration Agent to lodge an SBS nomination and 457 visa application for Brian on 24 June 2016. Brian comes in for an interview and you write up the following file note after the interview.
Meeting with Brian Park, 5.30pm Friday 24 June 2016
Now that the 457 visa application is validly lodged, his employer has told him that he has to work every weekend so he is not happy about this and is thinking of quitting.
He and his partner, Ellie Jones, have moved in together now and opened a joint bank account last week. They have also now registered their de facto relationship.
Brian has decided to lodge a partner visa application and withdraw his application for a subclass 457 visa. However, he is concerned that Ellie sponsored another spouse 3 years ago on a partner visa – relationship lasted about 2 years and that person left soon after getting his PR. Ellie thinks that her sponsored partner used her to get his permanent visa. Her friends all told Ellie that he was no good.
Ellie was divorced in September 2015 but the whole experience has left her with depression and she has been unable to work for the last few months. She is receiving counselling and seeing a psychiatrist. Even before they moved in together Brian had been supporting her financially and now they are living on his wage.
Seems that Ellie has become very dependent on him.
He will not have the money to lodge the partner visa until Tuesday 28 June as the money is being wired over from his father.
The CEO of your agency has directed that you lodge a partner application online as soon as the money is in your client account. Given that Brian by then will hold a BVA and Ellie has previously been a sponsor, the CEO wants you to prepare a submission to the DIBP addressing these two issues.
Your submission should explain:
why Brian’s BVA and Ellie’s previous sponsorship are obstacles to them being granted a Partner visa; and
how your client can overcome those obstacles?
Students use the temporary graduate visa (sub class 485) internationally who have been graduated recently from any educational institution that is Australian. The visa helps those students to stay in the territory of Australia after the completion of their studies. There are several requirements that are to be followed for availing the said visa[1].
The requirements that are required to be followed in case of making the application for the Temporary Graduate Visa (subclass 485) are as follows:
Hence, from the above discussion it can be said that the Temporary Graduate visa allows its applicant to work, live and study in the Australian territory after finishing studies. The students are capable of making the application for accessing the temporary visa only once and that too as an applicant who is primary. The Temporary Graduate visa comprises of two streams or in simple words the visa is granted two times, that is during the graduation program and the post-study program[3].
In the scenario that is provided, James fulfills the entire requirements that are needed to be fulfilled for making the application for temporary visa. Hence, it can be said that James can apply for the said visa.
The Temporary Work (skilled) visa (subclass 457) is that visa that permits any skilled worker to travel to Australia to start working in that occupation that is nominated for the approval of their sponsor for a maximum period of four years. There are several requirements that are to be followed to make the application for this visa[4].
The requirements that are to be followed for making the application of this visa are as follows:
The Temporary Work visa makes the allowance of the skilled workers to visit the territory of Australia for working in any business that is approved for a period of four years. The primary requisite for making the application of this visa is to be sponsored by any business that is approved[5]. Any business can make the sponsor of someone for the said visa only in the event, when they could not find any citizen of Australia or any of its residents who are permanent to do such skilled work. Any applicant can make the application while staying inside or outside the territory of Australia[6].
In the case that is provided, it can be depicted that the relationship with his sponsor that is Susan has subject to a break down. In the present time, there is no business where James is getting the sponsorship for working there. Hence, it can be said that James cannot apply the Temporary Work visa. James could make the application for the Temporary Work visa once he gets a sponsor again who would nominate him for any position of his business. Until then he has to be under the Temporary Graduate Visa (subclass 485) visa.
If the DIPB refuses the application of James for the Partner (Residence) (Class BS) subclass 801 visa, before lodging an application for another visa, then James visa status shall become inoperative in Australia[7]. His stay in Australia shall become illegal hence; James will have to apply for another visa the moment his partner visa is rejected. James may get the decision reviewed by the tribunal of the Administrative Appeals for re consideration of his visa application. If the Administrative Appeals reconsiders the matter and requests the applicant to re apply for the visa then the chances of visa approval for the second time is really high.
Dear Melissa,
I have received your issue about application of visa and I have reviewed your case in the light of Australian Immigration Law. From the facts that you have provided me with, I know that presently you are studying in Australia with visa subclass 573. You shall be completing your degree of bachelor in the year 2017 and now I have received your concern that you want to stay in Australia with permanent visa. I know that your mother has been given a partner visa under subclass 801 as she was married to an Australian citizen for the past three years. Therefore, I shall advise you to apply for permanent visa that shall be dependent on the sponsorship of your mother. In this letter, I shall explain to you the requirements needed to file a permanent visa that shall be dependent on sponsorship of your mother.
If a child applied for child visa subclass 802 then the child shall be able to stay in Australia for an imprecise period. Parents can also apply for their child, if the child is less than 18 years. However, parents can apply for their child in behalf of their children who are less than 18 years. Parents who have the capability of applying visa in behalf of their children should an Australian citizen or a citizen of New Zealand. At the time of making the visa application, it is important that children continue their stay in Australia. Children who are born in Australia automatically obtain the citizenship of Australia or if the parents of those children whose parents are already citizen of Australia. Either people or children who want to stay in Australia for their entire lifetime shall have to apply for a permanent visa or they may apply for permanent citizenship of Australia[8]. If a less is not married or is not in an unmarried relationship, he shall have the capability of applying for permanent visa. Such children shall be less than 18 years of age. Children above the age of 18 years, in special circumstances, can also be regarded as child. A child can obtain sponsorship from a person who is a citizen of Australia or is a holder of permanent visa in Australia; such persons can sponsor people who want to continue their stay in Australia[9].
Children who are studying in Australia with student visa and their parents hold permanent visa, then the child may also continue his stay in Australia with permanent resident visa. However, for applying for permanent visa the child has to stay in Australia during the time when he has made the application[10]. In your given case scenario, your mother shall have to sponsor your stay in Australia and she will be the one who will be helping you in applying your permanent visa. If the child is more than 18 years of age studying in Australia with student visa then he or she should be between the ages of 18 to 25 years, and should be relying on his parents for economic support.
Your mother has to submit the online form 40H and make the application for your sponsorship in the internet in the website of the department of Immigration. The following details should be included in the sponsorship form:
The issue that you may face here is related to the time span of your education, which is 12 months. In normal circumstances, the time taken for education should not be more than 6 months but in your case, you shall take one-year time for completion of your bachelor course. If we get this granted by the DIPB then your time period may get extended. The discretion lies in the hands of the DIPB to grant your stay in Australia by increasing the time span of your education. To prove that you are dependent on your mother for financial or monetary support, you may be required to submit additional documents in that regard. These documents shall be enough to prove dependency between you and your mom.
Your mother has to complete the form and along with the application of child visa. The sponsor, that is your mother, have to fill in the form and propose it to the Department of Immigration and Border Protection. After the application is submitted to the respective Department, you have to wait for some time until the visa is approved.
Conclusively, I hope that my advice regarding Child Visa under subclass 801 shall be helpful for you. In case you need any further help you may email me at [email protected]
Your’s sincerely,
Migration Agent
Aaa Bbb
Migration Department of Australia,
40, Sunnyside Avenue
Australia- 400051
Date: 2 July 2016
To whom it may concern,
Dear Sir,
This is to bring to your kind attention that, Brian and Ellie are my clients for quite some time and both of them want to apply for partner visa as they have already registered their de facto relationship with the Department of Immigration, Australia. Initially, Brian lodged for visa application under 457 successfully; however, later he wanted to withdraw his application for subclass 457 visa[12]. Ellie, about three years ago, filed for partner visa when she was married to some other person who initially left her, the moment he received the PR. Ellie stated that her first husband used her for receiving permanent visa. In the month of September 2015, Ellie was divorced.
Brian is a holder of BVA. BVA means bridging visa. As per the general rule of brigdging visa, a person is granted this visa when the applicant is physically present in Australia. A BVA shall allow him to stay in Australia until the partner visa is granted. A person to whom a BVA is granted and is an applicant of partner visa then he or she has no restrictions on working. This means that the person have full working rights when the BVA is granted to the applicant[13]. However, for Brian the current BVA may become a concern for him, as he may not be allowed to work because of cancellation of visa 457. Hence, Brian may have to seek an alternative to the BVA that is BE. The BVE allows people to stay in Australia until their current visa is approved. Therefore, Brian should be careful of the BVA that he is holding now as cancellation of visa under subclass 457 may lead to cancellation of his BVA. Hence, I shall advise Brian not to cancel his visa under subclass 457 and keep relying on it until partner visa is granted. Once he is granted with partner visa, he shall have the authority to stay in Australia and work without any hindrances. This may help in easy approval of the partner visa.
For being granted a successful visa application, couples should be married or should be in a de facto relationship. In the case of my clients, they have already applied for de facto relationship. However, the issue here is that Ellie already has an existing partner visa even though her partner has left and is divorced. The Immigration law of Australia states that a person cannot apply for two types of visa at the same time. In case, there is a need that the person needs to apply for two kinds of visas at the same time he or she needs to cancel the first kind of visa and then apply for the second one. Additionally, there is also a requirement to prove that there is a minimum time gap of 5 years for applying a new partner visa. In the case of Ellie, this is not so however, the partner visa may be granted if she is able to prove that her situation is a compassionate or compelling one. Ellie is not working, being the sponsor of Brian she has to show that she has strong economic stay, however, this is not the case, Ellie herself is not working. Hence, Ellie needs to cancel her existing visa and apply for a fresh partner visa with Brian and show that she has a strong monetary position. Ellie may also have to submit her divorce application at the time of applying her visa as a proof to the Department that her previous visa does not exists. The moment the divorce application is submitted her previous partner visa may be cancelled.
Sponsorship less than 5 years is not possible. As per Regulation 1.20J (1AA) (1) (a)(i), (b), (c), a sponsorship of less than 5 years may be accepted but in compelling or compassionate circumstances. Cases have to judged and determined whether there is existence of enough reason to declare a given situation as compelling or compassionate. Compelling or compassionate circumstances includes death of the partner, abandoning of a partner, dependency of the child on parents or a new relationship[14]. Such situations are regarded as compelling or compassionate in nature. The situations are not exhaustive. The DIPB has the authority to grant visa for the second time only when there is an existence of a compassionate or compelling situations. Likewise, the situation of Brian is very compelling and for such compelling or compassionate situation, he may be granted visa for the second time. The DIPB may use his discretion and it may grant visa if they think that the situation of Brian is very compassionate or compelling[15].
Conclusively, I would like to make a humble request to the DIPB for approving the visa to make their applicant expedient. I shall be awaiting a positive reply from your end. The relevant documents have been attached with this letter. Kindly review them and grant them a partner visa for allowing them to continue their stay in Australia.
Reference List:
Aas, Katja Franko. The borders of punishment: migration, citizenship, and social exclusion. Oxford University Press, 2013.
Beine, Michel, et al. “Measuring immigration policies: preliminary evidence from IMPALA.” CESifo Economic Studies 61.3-4 (2015): 527-559.
Dudley, Michael, et al. “Children and young people in immigration detention.”Current Opinion in Psychiatry 25.4 (2012): 285-292.
Fitzgerald, Jennifer, David Leblang, and Jessica C. Teets. “Defying the law of gravity: The political economy of international migration.” World Politics66.03 (2014): 406-445.
Gest, Justin, et al. “Measuring and comparing immigration, asylum and naturalization policies across countries: Challenges and solutions.” Global Policy 5.3 (2014): 261-274.
Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global perspective. Stanford University Press, 2014.
Kofman, Eleonore. “Towards a gendered evaluation of (highly) skilled immigration policies in Europe.” International Migration 52.3 (2014): 116-128.
Korostil, Igor A., et al. “Near elimination of genital warts in Australia predicted with extension of human papillomavirus vaccination to males.”Sexually transmitted diseases 40.11 (2013): 833-835.
Koslowski, Rey. “Selective migration policy models and changing realities of implementation.” International Migration 52.3 (2014): 26-39.
Law, Siew Fang, and Cynthia Mackenzie. ““Aussie, Aussie, Aussie, Oi, Oi, Oi”: Situating and Understanding Social Identities in Australia.”Understanding Peace and Conflict Through Social Identity Theory. Springer International Publishing, 2016. 349-366.
Martinez, Omar, et al. “Evaluating the impact of immigration policies on health status among undocumented immigrants: a systematic review.”Journal of Immigrant and Minority Health 17.3 (2015): 947-970.
Nethery, Amy, Brynna Rafferty-Brown, and Savitri Taylor. “Exporting detention: Australia-funded immigration detention in Indonesia.” Journal of Refugee Studies 26.1 (2013): 88-109.
Newman, Louise, Nicholas Proctor, and Michael Dudley. “Seeking asylum in Australia: immigration detention, human rights and mental health care.”Australasian Psychiatry 21.4 (2013): 315-320.
Newman, Louise. “Seeking asylum—trauma, mental health, and human rights: An Australian perspective.” Journal of Trauma & Dissociation 14.2 (2013): 213-223.
Powell, Rebecca, Leanne Weber, and Sharon Pickering. “Counting and accounting for deaths in Australian immigration custody.” Homicide studies17.4 (2013): 391-417.
Rowe, Francisco, Jonathan Corcoran, and Alessandra Faggian. “Mobility patterns of overseas human capital in Australia: the role of a ‘new’graduate visa scheme and rural development policy.” Australian Geographer 44.2 (2013): 177-195.
Sanggaran, John-Paul, Bridget Haire, and Deborah Zion. “The health care consequences of Australian immigration policies.” PLoS Med 13.2 (2016): e1001960.
Volpp, Leti. “Imaginings of space in immigration law.” Law, Culture and the Humanities (2012): 1743872111435963.
[1] Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global perspective. Stanford University Press, 2014.
[2] Powell, Rebecca, Leanne Weber, and Sharon Pickering. “Counting and accounting for deaths in Australian immigration custody.” Homicide studies17.4 (2013): 391-417
[3] Nethery, Amy, Brynna Rafferty-Brown, and Savitri Taylor. “Exporting detention: Australia-funded immigration detention in Indonesia.” Journal of Refugee Studies 26.1 (2013): 88-109.
[4] Newman, Louise, Nicholas Proctor, and Michael Dudley. “Seeking asylum in Australia: immigration detention, human rights and mental health care.”Australasian Psychiatry 21.4 (2013): 315-320.
[5] Martinez, Omar, et al. “Evaluating the impact of immigration policies on health status among undocumented immigrants: a systematic review.”Journal of Immigrant and Minority Health 17.3 (2015): 947-970.
[6] Korostil, Igor A., et al. “Near elimination of genital warts in Australia predicted with extension of human papillomavirus vaccination to males.”Sexually transmitted diseases 40.11 (2013): 833-835.
[7] Volpp, Leti. “Imaginings of space in immigration law.” Law, Culture and the Humanities (2012): 1743872111435963.
[8] Sanggaran, John-Paul, Bridget Haire, and Deborah Zion. “The health care consequences of Australian immigration policies.” PLoS Med 13.2 (2016): e1001960
[9] Fitzgerald, Jennifer, David Leblang, and Jessica C. Teets. “Defying the law of gravity: The political economy of international migration.” World Politics66.03 (2014): 406-445.
[10] Law, Siew Fang, and Cynthia Mackenzie. ““Aussie, Aussie, Aussie, Oi, Oi, Oi”: Situating and Understanding Social Identities in Australia.”Understanding Peace and Conflict Through Social Identity Theory. Springer International Publishing, 2016. 349-366.
[11] Newman, Louise. “Seeking asylum—trauma, mental health, and human rights: An Australian perspective.” Journal of Trauma & Dissociation 14.2 (2013): 213-223.
[12] Kofman, Eleonore. “Towards a gendered evaluation of (highly) skilled immigration policies in Europe.” International Migration 52.3 (2014): 116-128.
[13] Aas, Katja Franko. The borders of punishment: migration, citizenship, and social exclusion. Oxford University Press, 2013
[14] Beine, Michel, et al. “Measuring immigration policies: preliminary evidence from IMPALA.” CESifo Economic Studies 61.3-4 (2015): 527-559.
[15] Gest, Justin, et al. “Measuring and comparing immigration, asylum and naturalization policies across countries: Challenges and solutions.” Global Policy 5.3 (2014): 261-274.
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