family-partner-visas

FAMILY AND PARTNER VISAS

Visa Applications

  • Permanent and provisional business skills visas
  • Fiancé, spouse, partner, de facto, same sex
  • Employer Nomination Scheme visas
  • Regional Sponsored Migration Scheme and Subclass 457 visas
  • Skilled visas
  • Work visas
  • Family, children, adoption and parent reunification visas
  • Resident return if you previously held citizenship or permanent residency
  • Refugee and humanitarian visas
  • Retirement visas

Visa Application refusals and Appeals to the Administrative Appeals Tribunal or Federal/High Court

 The Department of Immigration and Border Protection  cancels or refuses numerous visas and  visa applications. We  assist with appeals to the:
  • Administrative Appeals Tribunal
  • Federal Courts
  • Minister of Immigration and Border Protection to intervene if it is in the public interest to do so.
 Please contact us to arrange for an initial assessment of your  situation.

Visa Condition Breaches

 We can provide detailed replies to a notice of intention to  consider cancellation issued for the following reasons:

  • Breaching a visa condition (Section 116);
  • Ceasing employment with a sponsor (Section 116);
  • Where grounds no longer exist for the holding of a visa (Section 116)
  • Providing incorrect information (Section 109);
  • Business visa holders failing to abide by the conditions of their visa (Section 137);
  • Consequential cancellations (Section 140);
  • Failing to pass the character test (Section 501).

Visa cancellation/
Unlawful Residence status

Each year we see many people who are in Australia but who do not hold a valid Australian visa. Either they have overstayed their visa or had their existing visa cancelled. We can advise on prospects of becoming unlawful. As we are lawyers and migration agents information provided to us is protected by client professional privilege. 

CALL ROTHSTEIN LAWYERS TODAY

Disclaimer: Information you obtain at this site is general information only and is not legal or migration advice. It does not purport to be comprehensive and is not a substitute for legal advice that evaluates your individual circumstances. Please contact us for advice.
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Adding dependent children to onshore partner visas is still available

From 19 November 2016 the definition of member of the family unit changed significantly to exclude children over the age of 23 years to be added to visa applications, unless they suffer from a disability. As a result of this change, applicants who apply for a Partner or Prospective Marriage visa offshore cannot include any children over the age of 23 who are not disabled.

However, applicants who lodge a Partner visa (Subclass 820/801) onshore can include children over the age of 23, if it can be shown that the child is still dependent upon the parent and is not engaged to be married nor has a spouse or de facto partner. To illustrate dependency, the child must show that:

(a) they have been a dependent under this parent for a substantial period of time (at least 12 months or more);
(b) they are either partly or substantially reliant on their parent(s) for financial support in terms of providing basic needs for food, clothing and shelter;
(c) the reliance is greater than any other reliance provided by any other person or source of support.

The establishment of dependency is considered on a case by case basis.

Article Uploaded April 2017

Significant changes to the definition of "Member of the Family Unit

From 19 November 2016 the definition of “Member of the Family Unit” in the Migration Regulations will change. 
Currently, visa applicants are able to include dependent children of any age and relatives in their visa application. 
From 19 November 2016 the definition of Member of the Family unit will become significantly more restricted. The only family members that an applicant will be able to include in his/her visa application are:
  
    (a) a spouse or de facto partner;
    (b) dependent children younger than 23 years;
    (c) dependent children (of any age) who are incapacitated for work; and
    (d) dependent children of (b) or (c). 
  
Dependent children aged over 23 years can no longer be included unless they are incapacitated for work. 
Other family members such as parents, nieces/nephews, grandparents and aunts/uncles can no longer be included as Members of the Family Unit. 
An exception is where a person currently holds a visa as a Member of the Family Unit and they seek to be included in a new visa application as a Member of the Family Unit. 

Another exception is if the main applicant is applying for a Protection or Humanitarian visa.

If you are considering applying for a visa and including secondary applicants (who are not a spouse/de facto partner or child under 23 years) we recommend seeking urgent advice. 

Article Uploaded November 2016

Important changes to Migration Regulations concerning sponsorship - prospective marriage and partner visas

The new changes come into operation on 18 November 2016. 

From the above date the sponsor of a temporary partner visa will be asked to provide a police check on one or more occasions. If not provided, sponsorship will not be approved. 

If the police check shows that the sponsor has a “significant criminal record” and the sponsor has been convicted of a “relevant offence(s)” the sponsorship will not be approved. 

“Relevant offences” include violence including (without limitation), harassment, breach of violence restraining order, possession of dangerous weapons, people smuggling/trafficking and aiding and abetting such offences. 


“Significant criminal record” includes being sentenced to imprisonment of 12 months or more or the sponsor has been sentenced to 2 or more terms of imprisonment if the total of these terms is 12 months or more. 

Sentences served concurrently will be added to each other for purposes of calculating the 12 month limitation. 

If a sponsor has been sentenced to periodic detention or residential schemes or programs the sponsor is taken to have been sentenced to a term of imprisonment equal to the number of days of the periodic detention or residential scheme or program. 

If pardoned or set aside the sponsor will be taken to never had been convicted of the offence in question. 

HOWEVER, despite a sponsor having been convicted of a “relevant offence” and the sponsor having a “significant criminal record”, the Minister MAY decide to approve the sponsorship. The Minister will have regard to the length of time since the sponsor completed the sentences the, best interests of the children of the sponsor or the applicant and the length of the relationship between the sponsor and  applicant. 

Rothstein Lawyers has extensive experience on character issues. 

Uploaded 20 September 2016

Onshore Applicants for Partner Visas

Onshore Partner visa applicants who do not hold a substantive (i.e. they are unlawful or hold a Bridging visa) must satisfy  additional requirements to be eligible. These requirements are called the Schedule 3 Criteria.

One requirement of the Schedule 3 criteria (amongst others) is that the application for a partner visa must be made within  28 days of the applicant holding a substantive visa. So, if the partner visa application was lodged more than 28 days since  the applicant last held a substantive visa, the applicant must instead satisfy the Department of Immigration and Border  Protection that there are “compelling reasons” to waive the Schedule 3 criteria.

Since 1 July 2014, the departmental policy no longer provides specific examples of “compelling reasons”. Instead the  department now provides examples of circumstances where it would not be  appropriate to waive Schedule 3. For example,  policy now states: 

“An example of where the circumstances may not be compelling to waive the Schedule 3 requirements may be where an  applicant has remained unlawful for a number of years, made little or no effort to regularise their status and claims  compelling circumstances on the basis of a long-term relationship with their sponsoring partner and/or hardship caused by  separation if they were to apply outside  
Australia for the visa.”
 
And;

“Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave  Australia and apply outside Australia for a partner visa.”

Please see next article.

Onshore partner visa applicants who do not hold a substantive visa at the time of applying for the visa may find this to be a complex aspect that needs to be overcome. Professional advice is recommended.

Article Updated August 2016


Recent Court Decision Affecting Onshore Applicants for Partner visas

Please see above article on “compelling reasons”.

Previously, visa applicants had to satisfy the Department of Immigration and Border Protection that the compelling reasons existed at the time of making the visa application. A recent decision of the Full Court of the Federal Court of Australia held that there is no requirement that the applicant establish that the compelling reasons existed at the time of making the application, it is enough that compelling reasons exist at the time a decision is made on the application.

This is a significant decision. Substantially more applicants may be eligible for Onshore Partner visas if compelling reasons to grant the visa develop during the processing of the application (Currently approximately 12 months).

If you have applied for an Onshore Partner visa and are required to provide evidence of compelling reasons as to why you should be granted a Partner visa, please contact us. 

Article Updated August 2016

Romantic Love not Mandatory requirement for Partner Relationship 

In the decision of Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 (29 January 2016), the full court of the Federal Court of Australia (“the Court”) found that romantic love and affection are not mandatory requirements that must exist between a couple in order for the couple to be in a genuine relationship.  

The Court found that a couple may have a commitment to each other to a shared life together as partners in absence of emotional or romantic love. 

The Court held that the Administrative Appeals Tribunal had erred by finding that a couple could not have a genuine mutual commitment to a shared life together unless “romantic love” was present. The Court held this is not reflected in the Migration Act or Migration Regulations. 

However, this does not mean that a “carer” relationship in exchange for financial or material support will necessarily be regarded as a genuine partner relationship. 

There is no hard and fast rule. Each case will turn on its own facts. 

Article Uploaded 24 February 2016.



SPECIALISING IN COMPLEX MIGRATION, CITIZENSHIP APPLICATIONS & APPEALS

Contact us on +61 08 9228 0300

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