Unlawful to Lawful Permanent Resident

APPLICANT PROFILE SUMMARY

Applicant Name: Michael (names have been changed to maintain confidentiality)

Age: 51

Nationality: United Kingdom – British Citizen

Current Visa: Bridging Visa E

Visa Applied for: Subclass 820 – Onshore Partner Visa

CASE BACKGROUND

Michael arrived in Australia on a tourist (subclass 601) ETA visa on 13 November 2019 at Sydney Airport with his wife and 3 children, all of whom were Australian citizens. They were initially scheduled to fly back to the UK as a family on 12 February 2020. 

Due to the bush fires in New South Wales and Victoria in late 2019 to early 2020, Michael applied for subsequent tourist (subclass 600) visas, to extend their stay. These were granted between 17 March 2020 and 1 August 2020. 

On or about April/May 2020, owing to the COVID-19 pandemic, the family decided to stay in Australia longer and had contacted the Department of Home Affairs for the same. The Department of Home Affairs has advisedon the specific form that he needed to complete upon the expiration of his tourist visa. In accordance with this advice, he completed the form and lodged it by post. Michael subsequently received a telephone call from the Department and was told that he had lodged the form ‘too early’ and was advised to complete another form and re-lodge soon after. 

A representative from the Department then rang Michael and informed him that a “Bridging Visa E” was granted from August 2020, instead of “Subclass 600” that he had initially applied for. Michael was subsequently granted a Bridging Visa E two additional times and continued to believe that he was getting his tourist visa extended due to COVID. Finally, in the last BVE that was granted on 8 April 2021, Michael was given a timeline to purchase a ticket and leave the country by 27 May 2021 

MIGRATION ACTION PLAN

As Michael has an Australian spouse, Augustine and Co. advised that he is eligible to apply for a Partner Visa if he can satisfy that compelling and compassionate circumstances applies in his circumstances. In preparing for the file, Augustine and Co. submitted detailed legal submissions to the Department of Home Affairs addressing the critical issues at hand.

RELEVANT LAW AND CONSIDERATION

As Michael wishes to apply for an onshore partner visa, he will need to apply for Subclass 820 and satisfy 820.211(2)(d)(ii) of the Migration Regulation Act 1994 (Cth), to be granted a Partner Visa. 

Pursuant to 820.211(2)(d)(ii), if in case of an applicant who is not the holder of a substantive visa: 

(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. 

Based on further investigation, it revealed that Michael does not satisfy 3001, 3003 and 3004 criteria. Instead, Augustine and Co. focused on thorough legal submissions on compelling reasons as to why Michael’s Onshore Partner Visa should be granted. 

In addition to the above, our submission also included references to Policy (PAM) and precedent cases, such as MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211 and Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 to explain the framework in which compelling and compassionate circumstances apply, and how it was satisfied. 

In this case, This Augustine and Co. put forward the below submissions amongst other detailed legislative & policy criteria:

  1. Michael’s Australian Dependent Children as a compelling reason with reference to the case of Federal Court case of Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, which discussed that an Australian citizen child is a strongly compassionate reason for waiver of Schedule 3 criteria. 
  2. Health of the Sponsor, as she suffers from chronic mental and physical medical conditions including a prolapsed disc, extremely severe anxiety and depression, and would experience significant hardship if she no longer had the care, assistance and emotional support of her husband, particularly as she would be required to be the sole carer of their three children. 
  3. Factors that were beyond the control of the applicant – The applicant had relied on the Departmental representative to provide sound immigration advice but had failed to do so.

OUTCOME OF THE CASE

Augustine and Co. Immigration Lawyers are still awaiting a decision from the Department, but is hopeful, based on the submissions provided that the application will not only be granted a positive outcome, but would result in the grant of both, the Subclass 820 (temporary) and Subclass 801 (permanent residency) simultaneously, due to the length of the relationship and children involved.

If you are facing a visa issue like Michael did, get in touch with our immigration lawyers by booking your consultation session.

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