To
Charles Newman
Sub: Information regarding Partner Visa Classes
From
ABC
Migration Agent
Kew, Victoria
Australia
Dear Charles,
This is in reference to your query regarding the partnership visa that you are interested to apply for in Australia. I would like to provide you with certain important information regarding the concerned visa.
Main difference between 309 visas and 820 visas
The Partner visa for Australia subclass 309 is a temporary resident visa for de facto partners or spouses of permanent residents, Australian citizens and eligible New Zealand citizens that are residing outside the country while lodging the application with the Australian Department.
Since you are not married, your relationship with Heather Smith will be considered as a de facto relationship. In order to be eligible to apply for this Subclass 309 visa, you must satisfy the following requirements:
The 12-month relationship criteria may be waived while applying for this visa if:
Since, neither of the circumstances exists, it is mandatory for you to establish the 12-month de-facto relationship with your partner. The visa shall be valid for two years.
The Partner visa subclass 309 shall entitle the holders to the activities enumerated below:
This visa can be applied if the applicant is a de facto a partner of an Australian permanent resident, Australian citizen or an eligible New Zealand citizen. The visa can be applied while the applicant is living in Australia and the application is lodged and while the decision is being made.
In order to apply for the subclass 820 visa, it is important that:
This subclass visa shall entitle temporary residence status to the partner authorizing the partner and the applicant to live together. It shall also allow the applicant to work, study and enroll in Medicare in the country. The applicant may also apply for Subclass 801 visa, which will permit the partners to live in the country permanently after such visa is granted.
The main difference between these two classes of visa is that if the applicant is living outside Australia, he may apply for Australia temporary residence visa subclass 309 and the permanent residence subclass 300 package. If the applicant is residing in Australia, he may apply for the subclass 820 visas and 801-visa application package.
According to section [45] of the Migration Act 1958 (the Act) the Minister for Immigration and Citizenship authorizes to grant a visa to enter, remain or travel in Australia to a non-citizen. According to section 45 to 46 of the Act, Division 2.07 and regulation 2.10 and Schedule 1 of the Regulations, a legislative scheme is developed that set out the requirements of a valid visa application for each specified class of visa. A valid visa application is defined as an application:
It is important to notify the department regarding the application in writing and any application can be withdrawn any time before any decision is made. In case of any change in the circumstances after applying for the visa, the changes shall be notified to the Department. Under the Migration law, the department shall inform about the application at the address provided in the application.
In case the visa granted to the applicant is subjected to certain conditions like (restrictions on study or work) the conditions should be followed otherwise the visa shall be cancelled.
If the requirements of a valid visa stipulated under section 45 to 46 of the Act, Division 2.2 and Schedule 1 of the Regulations, is not complied with, the visa application shall be considered as an invalid visa application.
Consequently, in case of an invalid visa application, the visa applicant shall be entitled to a refund of any charges or fees paid set out in Schedule 1 with respect to the visa application. Further, if a visa application is rendered as invalid, it does not imply that a visa is refused instead it allows the visa applicant to apply for another visa application.
The Migration Act allows determination of the invalidity of a visa application through judicial review and excludes it from the consideration of Refugee Review Tribunal [RRT] and Migration review Tribunal [MRT].
If a visa application is determined as invalid, any bridging visa that has been granted in association with the visa application, the same shall cease to be effective 28 days post the determination of the invalid visa. The visa applicant cannot hold a bridging visa for a visa application that has been disregarded by the Department of Immigration and Citizenship [DIAC].
Roland has been granted a Visitor Visa Class FA subclass 600 and it has certain conditions attached to such visa such as 8101,8201,8501,8503.
Visitor visa (subclass 600)
This visa permits the visa holder to visit Australia for visitor or business visitor purposes for a minimum period of 3 to 12 months. Further, there are certain conditions attached to this visa.
The 8101 condition shall not entitle Ronald to work while he is in Australia and in case of breach of this condition, the Immigration Department shall cancel the visa.
Ronald shall not be entitled to engage in any study or training for a period more than 3 months.
The Visitor visa (subclass 600) shall prevents Ronald from applying any further visa in Australia. However, regulation 2.05(4) stipulates the circumstances under which the Minister might waive a ‘No Further Stay’ condition include:
The visitors entering into the country are required to undertake health while the holder is residing in Australia.
Condition [8558]
The visa holder is not allowed to stay in the country more than 12 months within the 18 months period.
Ronald will have to satisfy the following requirements:
Ronald is on a visitor visa, which has a condition of 8503 that prohibits him for applying for another visa. However, Ronald cannot request to waive the ‘No Further Stay’ condition as though Ronald’s wish to remain in Australia with Jeanette may amount to ‘compassionate’ circumstance but such circumstances cannot be said to be ‘beyond the control’ of Ronald as was held in Ramos v Minister for Immigration [2017]. Hence, the partnership visa application has been rendered as invalid because it did not establish de facto relationship, which is mandatory requirement for obtaining the visa.
As per the clause 2.1 of theMigration Agents Regulations 1998, a registered migration agent must act as an agent of Australia and must ensure the legitimate interest of his or her clients. He must deal with the clients fairly, competently and diligently. According to clause 2.9, a registered migration agent is prohibited from making any statements or encourage making of statements that the agent believes to be inaccurate or misleading. As per clause 2.9A, the migration agent is prohibited from providing deceiving or misleading information or withholding relevant information to the authority.
In this case, being a migration agent it would have amounted to an infringement if I had withheld any relevant information related to the clients Ronald and Charles from the Immigration Department that would have otherwise been of great relevance.
It would have amounted to an infringement of the Migration Agent Regulations and Code of Conduct, if I had made deceiving and misleading statements before Charles and Ronald regarding their success in obtaining their desired class of visas. Further, it would have also amounted to breach if I had misrepresented that I would be able to procure the desired decision under the Migration Regulations 2.15 and Migration Act 1998.
Nevertheless, I had diligently provided all relevant and necessary information to both the clients with respect to the possibility of succeeding in the obtaining their respective visas.
As per clause 1 of the Code of Conduct, not providing a code of conduct copy to the clients may amount to violation. As per clause 3 of the Code, the office was small and had files containing information about clients which were visible to any clients visiting the office, amounting to breach of confidentiality. Furthermore, revealing information about another client to Charles was also a breach of confidentiality.
If I had lodged an invalid visa application, it would have amounted to non-compliance with the legal provisions of the Migration Regulationsand the Code of Conduct. According to clause 2.17 of the Migration Regulations, an agent must not encourage a client to lodge any application that has no hope of success or is vexatious. The client must be notified in writing, if the client persists, a written acknowledgement must be obtained from him. It would have amounted to a breach of clause 2.1 of the Migration Agent Regulations 1998, which requires the migration agent ensure legitimate interest of this or her clients. It would have also amounted to a breach of clause 2.9, which prohibits an agent from encouraging the making of any statement that is believed to be misleading or deceiving. As per clause 1 of the Code of Conduct, not providing a code of conduct copy to the clients may amount to violation. Further, as per clause 3, confidentiality about client’s information is a priority which should not be violated.
References
Department Of Immigration And Citizenship INVALID VISA APPLICATIONS (Commonwealth OMBUDSMAN, 2009) https://www.ombudsman.gov.au/__data/assets/pdf_file/0020/26192/investigation_2009_10.pdf
Immigration And Visas | Australia.Gov.Au (2018) Australia.gov.au https://www.australia.gov.au/information-and-services/immigration-and-visas
Migration Act 1958 (the Act)
Migration Agents Regulations 1998
Ramos v Minister for Immigration [2017] FCCA 2412 (3 October 2017)
Visitor Visa (Subclass 600) (2018) Homeaffairs.gov.au https://www.homeaffairs.gov.au/trav/visa-1/600-
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