Immigration Law

Migration law, and visa applications have become so technical and convoluted that it is highly recommended for you to obtain a skilled immigration law specialist to manage your migration application/s.

My Golden Rules on migration are:

1. Immigration law is always under change. If you are eligible for a visa then apply now, do not wait. Be quick, be timely.
2. Be active and vigorous in your application for a visa. Find out what immigration law actually applies to you and make sure that you respond to all legal issues in your application.
3. There are so many technical and little rules in each visa application and you have got to take each rule seriously – work out what are the requirements at date of application, what are the requirements at date of decision.
4. Be thorough in your application. You must be fully prepared to present all your facts in the best possible manner.
5. Other than parent visas, all other visas are not assessed by a queue date on a first come first served basis. There are times when you have to be active and complain to the Department of Home Affairs where your case is fully completed but is taking unduly long to process.

The major visa groups include:

Partner visas

Visas available include:

• Prospective spouse
• Spouse
• De Facto spouse (including same – sex relationships)

Prospective spouse visas

Prospective spouse visas can only be lodged overseas and is a short term temporary visa, generally for 10 months to allow the Applicant sufficient time to enter Australia, marry and lodge an on-shore spouse visa application in Australia. This is therefore a three step process: from the prospective spouse visa (subclass 300) to the temporary spouse visa (subclass 820) and then the permanent spouse visa (subclass 801).

Both parties are required to have met each other face to face before the application is lodged.

There is a requirement for the Applicant to provide a Notice of Intention to Marry (NOIM)in the application. This document can be obtained from a Marriage Celebrant or at the Registry of Births Deaths and Marriages.

Spouse visas

Spouse visas can be applied off shore (subclass 309 & 100 visas) or onshore (subclass 820 & 801 visas). If the spouse visa application is lodged on-shore, the Applicant automatically obtains a processing visa called a Bridging visa that entitles the Applicant to remain in Australia until their application is decided.

The term “spouse” is defined in Section 5F of the Migration Act, which requires a spouse to be in a “married relationship”. A “married relationship” requires the two persons to have a valid marriage, a mutual commitment to a shared life as husband and wife to the exclusion of all others; the relationship between them is genuine and continuing; they live together or do not live separately and apart on a permanent basis.

The decision maker is required to consider all circumstances of the “married relationship” including the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other (see Regulation 1.15A).

De facto spouse visas (includes same-sex relationships)

A de facto relationship is defined as a relationship between two persons who are not in a “marriage relationship” but:

• have a mutual commitment to a shared life to the exclusion of all others; and
• the relationship between them is genuine and continuing; and
• they live together or do not live separately and apart on a permanent basis; and
• they are not family members such as parent, child, sibling including adoptive parent, adoptive child, and adoptive sibling.

The decision maker is required to consider all circumstances of the de facto (including same-sex) relationship including the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other (see Regulation 1.09A).

Length of relationship: Evidence of a de facto relationship is generally proof of living together for 12 months as at date of application. There are waiver provisions where there are: compelling reasons for the waiver e.g. where there are children in the relationship; or the government on the home country does not allow for the couple to live together; or where the applicant is the holder of a permanent humanitarian visa; or alternatively where the relationship is registered in the State/Territory.

A de facto couple can register their de facto relationship with the NSW Registry of the Births, Deaths, and Marriages in the Sydney or Parramatta office and obtain a Relationship Certificate. However, while the Migration Act recognises a de facto relationship while one or both of the Applicants are married but permanently separated from their previous spouses, the Registry of Births Deaths and Marriage would require the parties to be formally divorced prior to the registration of their de facto relationship certificate.

Complications in partner visa applications

Some overseas posts are particularly concerned where the parties do not conduct a traditional marriage and refuse applications just on that ground alone. The rational given is that marriage is very important and if the country’s traditions are not observed then the marriage may not be genuine. It is important therefore when a couple choose not to follow a traditional wedding in the home country that this is carefully explained.

As a general rule, there is family support for the wedding of the two parties. This topic should be covered in the application and also an explanation as to why close family members did not attend the wedding.

There are also other partner visa complications of:

• End of a relationship due to family violence provisions or where there is a child in the relationship, or the Sponsor dies before visa grant
• Lodging a partner visa application out of time – commonly known as Section 48 and Schedule 3 requirements
• Sponsorship limitations to two offshore marriage and exemptions to this rule
• 5 years bar from the sponsor lodging a second or additional sponsorship for another partner and exemptions to this rule.
• Character issues for either Applicant or Sponsor

New Zealand citizens

New Zealand citizens who entered Australia prior to 2 April 2001 are considered to be Australian permanent residents. However, New Zealand citizens who entered Australia after that date are considered to be temporary residents on an indefinite basis under the subclass 444 visa.

New Zealand citizens who entered Australia before 19 February 2016 are eligible to apply for a specific skilled visa subclass 189 where they can show residency of 5 years in Australia and taxable income over the threshold requirement of $53,900 for 3 out of the last 5 years immediately before application.

Special provisions for absorbed persons and persons born in Australia prior to 20 August 1986

Where a person is unlawful and meets the requirements of section 34 of the Migration Act, that is to have resided in Australia prior to 1 April 1979, the person may be considered to be absorbed in Australia and is considered an Australian permanent resident.

Prior to 20 August 1986, a person born in Australia was an automatic Australian citizen regardless of their parents’ nationality. Since 20 August 1986, a child born in Australia takes on the nationality of their parents.

Also note that a child born in Australia, and lives in Australia for 10 years from date of birth, is eligible to apply for Australian citizenship. A child abandoned in Australia is also eligible for Australian citizenship.

Visa Cancellations – for temporary and permanent resident visa holders

Visas can be granted and they can also be cancelled. Cancelling a temporary or permanent resident visa can be very quick and very easy.

There are a wide variety of cancellation powers under the Migration Act. Visas can be cancelled on grounds of providing incorrect information (PIC 4020), or not meeting visa condition requirements (see a series of cancellation powers under section 116 of the Migration Act) or where a person is considered not to be of good character (see section 501 of the Migration Act). Visas can be cancelled where the Applicant is on-shore or also where the Applicant is travelling off-shore (see section 128 of the Migration Act).

There is a mandatory cancellation provision under Section 503A of the Migration Act. This states that where you have a “substantial” criminal record, as defined by legislation, including being sentenced to imprisonment for an aggregate of 12 months or more, and you are serving a full time prison sentence then your visa must be cancelled. You can apply for revocation of the decision to cancel your visa.

In the past financial year ending 30 June 2021, the Department cancelled 28 visas due to the visa holder’s driving offences. It is true.