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7131LAW Foundations of Australian Migration Law and Practice

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Questions:

Question 1

Albert Zweistein, a 22 year old citizen of Germany, entered Australia as the holder of a Student (Temporary) (Class TU) subclass 500 visa. He has been studying an English course over the past year and recently went on holiday to celebrate the end of his course.

Albert has just realised that his visa expired yesterday and has turned up in your office asking for your help. You are a registered migration agent. He would like to know whether he can now apply for another student visa while he is in Australia. Albert tells you that he has already enrolled in a Bachelor of Arts degree at Griffith University in Brisbane and is looking forward to starting in 2017.

  1. Prepare a letter of advice to Albert in which you explain the requirements to lodge a valid application for the Student (Temporary) (Class TU) subclass 500 visa and advise him whether or not he is able to lodge a valid application for this visa.
  2. Would your advice be different if instead of simply expiring, Albert’s subclass 500 visa had been cancelled under s.109? In that case, would Albert be able to lodge a valid application for a Student (Temporary) (Class TU) subclass 500 visa? Explain by reference to the legislation.

Question 2

You are a registered migration agent with a fledgling practice. You have received an email from a potential client in Uganda. Akello is asking for your advice about applying for a visa to live in Australia. He tells you that he and his Australian citizen girlfriend, Kissa, have been living together for over a year in Uganda and that they are planning to get married next week and then eventually move to Australia. He tells you that he already has two wives and that he and Kissa will be getting married in a customary marriage ceremony. He would like some information about a partner visa.

With reference to relevant provisions of the Migration Act 1958 and Migration Regulations 1994, prepare an email in response in which you:

  1. Explain the definition of “spouse” and whether or not Akello’s relationship with Kissa meets this definition;
  2. Explain the definition of “de facto partner” and whether or not Akello’s relationship with Kissa meets this definition;

Answers:

Answer 1

Part A

Student (Temporary) (Class TU) subclass 500 is for those individuals who wish to conduct study in Australia regardless of the sector. For making valid visa application, it is necessary to fulfill following requirements:

Eligibility Criteria: it is necessary that applicant must have applied for or accepted to study in the registered full-time course at any education institution in Australia, and applicant must organized welfare arrangements for the duration of intended stay in Australia in case applicant is under the age of 18 years (DIBP, n.d.).

Individual must make valid visa application, and for this purpose it is necessary that applicant disclose information related to previous visa applications. Provision related to false or misleading information on visa application can results in refusal of the application. Therefore, it is very important to lodge the complete application, which means applicant must provides all necessary information for making the decision.  

The Applicant must support their application with as much information as possible because decisions are made solely on the basis of the information provided by the applicant and attached to the application. Therefore, individual must ensure that all necessary documents are uploaded to the immi account which can be assessed for further verification. The Following is a checklist of related documents:


  • Completed the application form using English language.
  • Applicant must pay non-refundable visa application charge.
  • Passport size photo of the applicant and also photo of any dependent.
  • Provide scan pages of passport and also of others who are included in the application. The passport must be valid for period of stay in Australia or for the minimum period of six months.
  • Applicant must state the Confirmation of Enrolment (CoE) certificate.
  • Thai National Identification card and House Registration Certificate or Birth certificate.
  • Applicant must provide the evidence related to his relationships with family member included in the application.
  • Military discharge papers if applicable.
  • In case family member of the applicant is below the age of five years but above the age of 18 years and accompanying the applicant in Australia then the applicant must provide the documents which confirm their enrolment in Australian school (DIBP, 2017).

Health requirements: applicant must provide documents such as Medical and x-ray examination results of themselves and also of family member included in the application.

Financial Capacity Requirements: applicant must have sufficient funds for covering the cost for themselves and associated family member. There are various types of cost such as application cost, living cost, etc.

English language requirements: applicant must provide regular evidently requirements for following purpose:

  • Evidence related to acceptable English language test score
  • Evidence that the student falls within an exempt category.

After considering the above requirements it is clear that Albert met the eligibility criteria for this visa application, and he can lodge the valid visa application for this visa.

Part B

Section 109 of the Migration Act states the provisions related to cancellation of visa in case of incorrect information. According to this section minister may cancel the visa in following situations:

  • If under section 108 it is decided by minister that there is non-compliance on the part of the holder of the visa.
  • Minister after considering the response to the notice related to non-compliance given in a way required under section 107(1) (b).
  • In relation to any prescribed situations.

Section further stated that in case minister cancels the visa under section 109(1), then minister must do this if exists situations are those situations in which visa can be cancelled as declared by migration regulations (Migration Act, 1958).

Section 109 of the Act is very important section which states the provisions related to cancellation of visa in case any of the grounds of non-compliance stated under section 101-105 are present. Section 101-105 of the Act state the provisions related to incorrect information to the department. Section 101 relates with whether in visa application, section 102 relates to passenger card, section 103 relates to bogus documents, section 104 relates to the provision which state that non-citizen also required to submit particulars of changes of circumstances, and section 105 states provisions related to previously submitted the incorrect information with department.

In case person fails to meet these requirements then minister has power to issue notice of intention for the purpose of considering cancellation. Then visa holder has power to dispute that there are grounds of dispute or they can admit the non-compliance and make argument for not cancelling the visa in any event under section 107 and 108 (ANU, n.d.).

Section 48 of the Migration Act states that any non-citizen who is in the migration zone does not hold substantive visa and either:

  • Whose visa was refused after last entering into Australia other than refusal related to bridging visa or any refusal under section 501, 501A or 501B, or
  • Non-citizen hold the visa which was cancelled under section 109, 116, 134, 137J, and 137q (Migration Act, 1958).

Then these non-citizens are subject to the regulations, and they can only apply for the visa fall under prescribed class and not for visa of any other class for the purpose of this section.

In other words, those non-citizens on who section 48 applied can only applied for particular class of visa which are stated under regulation 2.12(1) of the Migration regulations 1998, and not in any other class of visa.

In the present case, if visa of the applicant is cancelled under section 109 of the Migration act 1958 then section 48 applied on Albert which means that Albert can only apply for prescribed class of visa stated under regulation 2.12(1). Student (Temporary) (Class TU) subclass 500 visa is not included in the regulation 2.12(1). Therefore, Albert cannot lodge application for this visa (Migration Regulations, 1998).

Answer 2

Part A

The partner visa (subclasses 309) allowed the partner or spouse of an Australian Citizen. This is a temporary visa (Provisional visa), and it is considered as first step for the purpose of getting residency in Australia. This visa is available for the spouses, de facto partners of Australian citizens, and permanent residents or eligible New Zealand citizens who reside in Australia. Applicant can apply for this visa if they are outside the Australia at the time of lodging the application and approval.

Eligibility: applicant must be the spouse or de facto partner of the citizen of Australia, permanent resident of Australia, and eligible citizen of New Zealand. Applicant must meet the requirements related to relationship and other eligibility requirements. Applicant must be outside the Australia when they apply for this visa. In case person is in Australia then applicant must be eligible for a Partner visa (subclass 820 and 801).

Length of stay: applicant on the basis of temporary 309 visas can stay in Australia ill the decision is made out for the permanent partner visa (Subclass 100), and on this visa applicant can stay permanently.

This visa makes the applicant eligible for the permanent partner visa, and for getting this visa it is necessary that applicant must applied for temporary Partner (Provisional) visa (subclass 309). Applicant must apply for both the visa at the same time that is permanent and temporary visas and they pay only one fee. In case person gets the temporary partner visa then they are eligible for applying the permanent partner visa within two years after you lodge the application.

In case applicant is in long term relationship before lodging the application then applicant is eligible for permanent partner visa immediately after the temporary Partner (Provisional) visa (subclass 309).

In other words, if at the time of lodging the application applicant is in long term relation with their partner then permanent partner visa is granted to the applicant immediately after the temporary Partner visa (subclass 309).

It must be noted that applicant must be of 18 year or older at the time of lodging the application, because for the purpose of Australian law person must be of 18 year or older for valid marriage, and in case person is de facto partner then they must be 18 or older when they apply.

Applicant must be the spouse or de facto partner of the citizen of Australia, permanent resident of Australia, and eligible citizen of New Zealand. Applicant is considered as eligible applicant if their relationship breakdown after lodging the application.

Applicant must have sponsor who will be the partner of applicant, except in case partner is under 18 years of age.

Health Requirement: applicant must meet the health requirements for the purpose of lodging the valid visa application.

Character Requirement: applicant must meet the character requirements for the purpose of lodging the valid visa application.

Debts to the Australian Government: applicant must repay or make arrangements to repay the outstanding debts of the Australian government (DIBP, 2017; VFSglobal, n.d.).

Part B

  • Person is considered as spouse of another person if they are in the marriage which is legally valid in Australia, and both the partners have mutual commitment for the purpose of sharing life as husband and wife to the exclusions of all others. Relationship of the partners must be continuing relationship and genuine in nature, and person lived with the other person and must not live separately and apart on a permanent basis.

It must be noted that same sex relationship partners can apply for this visa on the basis of their de facto relationship (DIBP, 2017).

However, it must be noted that for the purpose of being legally valid in Australia person:

  • Person must not be married to someone else,
  • Person must not married their parent, grandparent, child, grandchild, brother or sister,
  • Person must be of at least 18 years of age, unless Court gives approval to their marriage in case one party of the case is aged between 16-18 years.
  • Person must understand the meaning and importance of marriage and give free consent to become the husband and wife.
  • Person must use some specific words at the time of ceremony.
  • Person must give notice of intention for the purpose of marrying their authorized celebrant within the required time frame (AGD, 2017).

In the present case, Akello is the citizen of Uganda and he already has two wives and he also want to marry Kissa as per the customary marriage ceremony. Akello want to enter in Australia on the basis of partner visa but this is not possible because there relationship does not meet the definition of spouse, and their marriage is not legal as per the law of Australia.

  • Applicant and their partner are in de facto partner relationship in case following details applied:
  • They are not married to each other on legal basis.
  • They commit to share their life with each other and to the exclusions of all others.
  • Relationship of partners must be of continued and genuine in nature.
  • They must be live together and not live separately and apart on permanent basis.
  • They are not related by family to each other.

It must be noted that their relationship can be with someone who is of same or different sex.

Relationship length: relationship between the applicant and partner must be existed for at least 12 months immediately before they apply for the visa. It must be noted that time spend on dating and on online relationship does not considered for this relationship. In case relationship of applicant and de facto partner existed for less than one year then also applicant is eligible for the visa if they show that they fall under the exemption which states that person must not need to meet the one year relationship requirement of de facto relationship (DIBP, 2017).

In the present case, Akello and Kissa are living together from last one year in Uganda and because of this they are fall under the definition of de facto partner. Therefore, their relationship meets the definition of de facto relationship.

References:

AGD. Getting married. Available at: https://www.ag.gov.au/FamiliesAndMarriage/Marriage/Pages/Getting-married.aspx. Accessed on 25th July 2017.

ANU. Administrative Decision-Making in Australian Migration Law. Available at: https://press-files.anu.edu.au/downloads/press/p318861/html/ch03.xhtml?referer=&page=5. Accessed on 25th July 2017.

DIBP, (2017). Married applicants. Available at: https://www.border.gov.au/visas/supporting/Pages/309/Married-applicants.aspx. Accessed on 25th July 2017.

DIBP, (2017). Partner (Provisional) visa (subclass 309) and Partner (Migrant) visa (subclass 100). Available at: https://www.border.gov.au/Trav/Visa-1/309-/Partner-(Provisional)-visa-(subclass-309)-and-Partner-(Migrant)-visa-(subclass-100)-document-checklist. Accessed on 25th July 2017.

DIBP. Student visa (Subclass 500). Available at: https://thailand.embassy.gov.au/files/bkok/Visa_Student_En%20Jul.pdf. Accessed on 25th July 2017.

DIBP. Student visa (subclass 500). Available at: https://www.border.gov.au/Trav/Visa-1/500-. Accessed on 25th July 2017.

DIBP. What a de facto relationship is. Available at: https://www.border.gov.au/Visas/supporting/Pages/partner/what-de-facto-relationship-is.aspx. Accessed on 25th July 2017.

Migration Act 1958- Section 109.

Migration Act 1958- Section 48.

Migration Regulations 1998- regulation 2.12(1).

VFSglobal. Partner  (Subclass 309 - And Subclass 100 - Partner) Visa Application Checklist. Available at: https://www.vfsglobal.com/Australia/India/pdf/Checklist_Partner_309_24.09.12.pdf. Accessed on 25th July 2017.

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