You need a Partner Visa. Your biggest problem? A lack of free and reliable information

JENNIFER KHAN your biggest problem

One of the biggest problems I hear from my clients is that by the time they have sought out my assistance they are frustrated with a lack of free and trustworthy information.  The Department of Immigration and Border Protection lists the requirements for visas, provides a booklet and also checklists.  However many times couples find themselves, when trying to align their circumstances with the requirements, feeling like they are a square peg trying to fit into round hole.  They then fear they cannot apply.   The next step taken is usually a call to Immigration. Due to high numbers of calls to Immigration there is usually a very long wait time to be told generic information if any.   If there are  specific questions involved the person who answer the phone will usually suggest you seek the advice of a Registered Migration Agent.

Understandably with the high cost of applying for a Partner Visa most people seriously consider doing the application themselves, often relying on information from friends who have recently been through the process or through online forums.   I think a person becomes very vulnerable in the attempt to seek trustworthy information.  And all too often people end up believing the wrong thing.  A client from several years ago and I were about to  lodge his application when he adamantly told me that his uncle said we could pursue an alternate pathway. Which we couldn’t.  It was an awkward situation and I had to respectfully steer my client away from relying upon  word on the street migration advice.

This year I have decided to share some of my experience and knowledge for free.  This was a challenge for me for I had previously operated in a “my time is money” way.  As an ethical Registered Migration Agent I see what I am sharing on my website is trustworthy.  I am happy that this addresses many people’s concerns that there is not enough good assistance around for free.  The information is also a tool for people to determine whether they will need to use a Registered Migration Agent or not.  But then not all Registered Migration Agents are trustworthy either.  I recently heard a client tell me that their previous Registered Migration Agent (RMA) said it was no problem for them to create all the witness statements. This is not ok at all, it is illegal.  Apparently all aspects of the application would be handled by this RMA “easily”.  Months later we find no application was ever lodged and the RMA was unwilling to send this client their file which they are entitled to.  I suspect no file was ever created.  Not only that a higher fee than I charge was taken and a refund promised,  a promise unlikely to be fulfilled.   You will be familiar with news stories about dodgy Migration Agents, especially regarding work visas where employers take 10s of thousands of dollars for sponsorship (illegal) and the agents will take even more money.

In any profession there are people who operate unethically so it is fortunate that Migration Agents Registration Authority are good at weeding out dodgy agents. An example of a cancelled registration:

The Agent’s registration as a migration agent has been cancelled under section 303 of the Migration Act 1958 and he cannot provide immigration assistance. The Authority considered several complaints and found that the Agent had breached clauses 2.1, 2.4, 2.6, 2.8, 2.9, 2.9A, 2.15, 2.18, 2.23, 3.4, 5.2, 5.5, 7.1B, 7.2, 7.4, 9.1 and 9.3 of the Code of Conduct for registered migration agents. The Authority also found that the Agent is not a person of integrity or otherwise not a fit and proper person to give immigration assistance. The Agent repeatedly mislead his clients; did not lodge applications and perform services which he was contracted to provide; retained client funds; knowingly presented false information to the Department in connection with 2 visa applications and failed to respond to complaints and attempted to mislead the Authority

The number one source of reliable information would have to be from the Department of Immigration and Border Protection website.   The checklist there does provide a concise list of requirements.  There is often accurate information on forums also, the only problem there is the conflicting information which leaves a person confused.  My best advice then is that you rely on the Immigration website advice only. If you feel you need further information go straight to a Registered Migration Agent.  We RMA’s have been trained to always, for each and every client, go to the Migration Act 1958 and  Migration Regulations 1994  first and foremost, checking that all we do is up-to-date with the latest changes. I rely on the Act and the Regulations more than the Immigration website.

I have also been visited by clients who have sought the advice of an ethical Migration Agent, I know that this agent does good work, but were turned away being told that it was impossible to apply for a visa.  It was good that they decided to obtain a second opinion as I was able to tell them otherwise by thoroughly checking the regulations and recent policy. The couple went on to have a visa granted several months later.  Point is, if the Immigration website makes you feel you may be ineligible, check with a Registered Migration Agent,  if you are unsatisfied with that opinion you can go on to receive a second opinion.  In my experience word on the street advice has left clients very fearful of the worse unncessarily and often wastes a lot of time.

Useful information about selecting a representative can be found here https://www.mara.gov.au/using-an-agent/

Where to find a checklist from Immigration see below: Checklist location

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Do you have the right representative for your Partner Visa application?

 

JENNIFER KHAN asre you choosing the right representative

The Administrative Appeals Tribunal is where your partner visa application can be looked at again in the event of a refusal. I frequently study the decisions and reasons made during a hearing as it greatly helps me to prevent visa refusals for my clients. As migration law frequently changes it is one of a few ways I keep myself up to date with the changes.  Another benefit of studying these decisions is they not only show recent legislative changes, but they also show how we can or can’t apply these changes. It can also show who did the right thing and who did not.

Today I  will share with you a recent decision made regarding a Partner Visa that was applied for outside of Australia.  A refusal decision was made in late 2014 with the tribunal hearing taking place mid 2016.  I should add that the case is not my own however any person can access decision records using www.austlii.edu.au, this is mostly how I research hearing decisions.  The refusal was not the couple’s fault but the fault of their representative.

The reason for refusal in this case is a common reason for refusal:

(the applicant) did not satisfy cl.100.221(2)(b) because the delegate[person allocated to assess the partner visa application] was not satisfied that the applicant is the spouse or de facto partner of her sponsor.

The first thing that comes to mind here is the word ‘genuine’ .  I have written a blog previously about this word.  Establishing that a visa applicant is genuine is pivotal to the success of a visa application. For specifics about how to achieve this in the context of a Partner Visa Application click  HERE in the context of a Sponsored Spouse Visa application click HERE’

The couple were ‘found to be validly married’ which meets a specific requirement in the Migration Act at s.5F(2)(a). Moving through the hearing I am taken aback by this statement,

“The delegate made, in essence, a “no evidence” decision, documenting in the decision his various contacts with the parties’ previous migration agent in an ultimately futile attempt to elicit supporting evidence of the parties’ relationship.”

What is upsetting here for me is that even though the couple did appoint a Registered Migration Agent to represent them this Migration Agent  appears to have made a ‘futile attempt’ to gather sufficient supporting evidence to show that they were a genuine couple.  Perhaps the Migration Agent only submitted the bare minimum requirements or not even that.  The decision included that the sponsoring Australian partner, “expressed his frustration at the previous migration agent’s conduct of this matter.”   While preparing for this Tribunal hearing thankfully the couple managed to find a competent Registered Migration agent who “provided the Tribunal with a great deal of documentary evidence”.

If the case officer who made a decision on the original Partner Visa application had had this evidence at the time of decision in late 2014 I think there would have been very few problems in obtaining a visa grant. Even with the great deal of documentary evidence, after looking at weaknesses in the documents shown at Tribunal, one issue that I believe a case officer possibly could have refused the visa for was in the area of the couple proving ‘pooling of finances’ unless this was dealt with carefully in the application. The result of the hearing was,

“On the evidence overall, the Tribunal finds that the parties have 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; and they live together and do not live separately and apart on a permanent basis, thereby satisfying the requirements of s.5F(2) for being in a married relationship”.

The visa was subsequently granted.  Read HERE  to consider the full consequences of a visa refusal.

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