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.

3 reasons

Partner Visa Application Refused- Why?

Jennifer Khan Partenr Visa application refused

 

A couple lodged a partner visa application, prepared by themselves on 12th December 2013.  Fortunately they were both in Australia at the time. If Mr X had been outside Australia at the time then he would most likely need to stay outside Australia throughout the processing of the visa.  Almost one year of waiting later, on 17th November 2014 the couple had their outcome: refused.   Today this means the $6865 application fee is lost for this fee is not refundable in the event of refusal.  The application fee to appeal the refusal decision is currently $1,673 in addition to likely migration assistance fees and further processing times.  Mr and Mrs X waited until 25 February, 2016 before their case was heard before Tribunal totalling more than two years of living in uncertainty, their life together on hold not knowing whether or not Mr X would receive a visa to stay in Australia.  This is one of the most turbulent and stress-creating times a person can go through.    Why did this happen?

I will run through the case and what the Administrative Appeals Tribunal reasoned at the hearing last February in the hope it will prevent mistakes being repeated by someone else going through the process.   If people ever traipse through the minefield of Australian immigration law  they are often only going to need to do it one time.  As a result of the newness of it all, understandably  mistakes are probably going to happen. Unfortunately some mistakes can mean the difference between a visa grant or refusal. Here are the mistakes.

 

Mr and Mrs X had separate addresses at the time they applied.  This does not in and of itself mean a visa will be refused but weighs in favour of refusal. During the hearing they were found to have good reasons for having separate addresses at the time they applied.  These reasons should have been written, evidence given and included with the visa aScreen Shot 2016-05-31 at 3.02.53 PMpplication.  This is probably not a thing most people would know to include.   During the processing of a visa application a case officer will expertly look for weaknesses in any claims made so we always need to give reasons convincingly.

The couple did not provide with their partner visa application sufficient evidence of ‘pooling of financial resources or sharing of day-to-day household expenses’.  In my opinion this would be the main reason for visa refusal which is why it is the area I focus on the most when preparing a partner visa application.  The less evidence, the more I work on this aspect.   While Mr and Mrs X waited for their case to be heard at Tribunal they would have been provided opportunity to provide evidence of ‘financial pooling’.   By February, 2016 they were able to show the Tribunal enough evidence to show that “they have in the past integrated their finances and currently share ongoing financial responsibilities”.   But had they been guided enough at the time they applied in December, 2013 they would have unlikely needed to go through the excruciatingly worrisome refusal and appeals process.

The  Tribunal went through all the factors related to partner visa application assessment but the only factor explicitly stated that the case officer was not satisfied with was the ‘pooling of financial resources’.  The good news is Mr X ended up with a partner visa after the required processes were fulfilled.  For further information about relationship ‘factors’ that are assessed after you lodge
a partner visa application click on the image below: JENNIFER KHAN how to blog image

3 reasons

Think you can’t migrate because you are banned? Well, perhaps you can…

Jennifer khan banned or excluded

 A RE-ENTRY BAN OR EXCLUSION PERIOD

Have you been told this applies to you? Then either you overstayed a visa or had a visa cancelled.  Maybe this happened as a result of your overlooking a visa condition, or leaving the responsibility of your visa in the hands of an employer who didn’t understand the immigration process themselves.  In regards to the last reason I have spoken with quite a few visa holders who have relied on their employers to arrange their visa applications and the employer got it wrong.  The sad story here is that the adverse consequences fall harshly on the visa holders more so than on the employers.  Now and then it is my job to move forward with this person and find the correct immigration pathway.  The situations needs to be carefully discussed with DIBP and where possible a new visa applied for.  Sometimes it is not immediately possible, sometimes never possible, sometimes because of the re-entry bans and exclusion periods.
I will list the types of bans and exclusion periods here:

Ban period = FOREVER*

This applies if visas  are  cancelled in relation to substantial criminal records or if you were deported due to criminal or security reasons.  However if you are subject to this ban for one of the above reasons and are in Australia you can still apply for a Protection Visa if eligible.

Ban period =   ONE YEAR* 

This applies if you were ‘removed’ or deported from Australia or are a dependant of a ‘removed’ or deported person.  Refugee and Humanitarian visas are your only option within the 1 year ban.

Ban period = THREE  YEARS*

If you have a three year ban period then you may have 1) had your visa cancelled or you 2) departed Australia when you held a Bridging Visa C, D or E and it was more than 28 days since you held a substantive visa.   You still have a chance of applying for many types of visas which is the good news, the bad news being they can only be permanent visas.

BUT

There is such a thing as applying for a waiver of an exclusion period  if you can show compelling circumstances affecting the interests of Australia or compelling and compassionate circumstances affecting an Australian citizen, permanent resident or ENZ citizen.  An example is you are the father of a child with an Australian permanent resident mother.  It is not easy to obtain a waiver however it is a frequently explored option as it enables a person to stay in Australia despite these re-entry bans and exclusion periods.  If you don’t have such circumstances  then you will unfortunately need to fulfil the ban period.

*Disclaimer: you can see the complexity of the rules surrounding the exclusion periods and re-entry bans.  Please do not rely on this information in determining your way forward as the rules can change anytime – please seek advice from a Registered Migration Agent or Lawyer.

Sponsored Family Visit Visas- how to get them granted

family visitor visas how to get them jpg

These visas (Sponsored Family Visit Visas) appear easy to obtain.  The fee to the Department of Immigration and Border Protection is only $135, you need only have a relative in Australia, a reason  and some relevant identity documents – yes?   No.

I have received countless calls from immigrant Australians upset, offended even, that there Sponsored Family Visit visa was refused.   I feel their frustration.  The news can also be devastating if the refusal means they cannot be with certain family members at very important times in their lives. I feel their devastation.  I respond every time, “I’m sure the decision record stated it was a refusal based on ‘genuine entrant criteria’.  I see this so many times I can even give you the clause number  ‘600.211’.”  “Yes,”  they respond.

This is what will be written on the decision record:

600.211

The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

(a) whether the applicant has complied substantially with the conditions to which the lastsubstantive visa, or any subsequent bridging visa, held by the applicant was subject; and

(b)whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

(c) any other relevant matter.

The applicant failed to meet the legal criterion in clause 600.211 of the Migration Regulations1994 as I am not satisfied that they intend a genuine visit to Australia

Really the word ‘genuine’ is so significant for this visa application, and many other types of visa applications that, no matter what type of documentation you provide, the entire application endeavour will fail should the case officer conclude that you, or your family member, is not genuine.   How do we prove that a person is genuine?  I will walk you through this with regard to temporary visa applications, more specifically the Sponsored Family Visit visa applications.

For any visit visa (Subclass 600)(Class FA) application the case officer must be satisfied that applicant will return to their country of origin before the expiry on a visit visa if granted.  And to convince your case officer of this I need to give them as much detail as I can about all the reasons you or your family member have to return home.  The Department of Immigration and Border Protection’s Procedures Advice Manual 3 (PAM 3) classify this topic under ‘The genuine temporary stay requirement’ and directs the case officer to ask for evidence of ‘incentives to return to the home country such as evidence of financial, person and community ties’.

The policy implies that the case officer after having received an application, will ask  for further evidence before reaching a decision. However under migration legislation the case officer does not have to ask for further information and usually refuses the visa if the applicant does not take the initiative to send this type of information with the original application.  In preparing an application I go above and beyond,  ‘overkill’ if you like, in obtaining every possible shred of evidence I can from your family to establish sufficient financial, personal and community ties,  so that the case officer can only conclude that you or your family member to will be  a genuine visitor.  We do not want the case officer concluding that they are a potential overstayer, or a person who is ‘attempting to maintain ongoing residence’ by manipulating the visa system amongst other possible adverse findings.

Aspects of you or your family member’s life that the case officer must assess are listed in subheadings under ‘The genuine temporary stay requirement’.  These are (exactly as written) :

  • Previous visa compliance
  • Intention to comply
  • The ‘any other matter’ factor – (good grief!)
  • Credibility
  • Purpose and period of stay
  • Previous immigration/travel history
  • Intel reports and profiles

These are all assessed with regard to the Department’s ‘Risk tiering overview’. The higher the level of ‘risk’ the country of origin and applicant is determined to be the more scrutiny an application will face.  “As risk tiering has no legislative basis, a decision to grant or refuse a visa based on the existence of risk tiering would be an error of law,” despite this you can be sure an application is facing a refusal if I cannot convince your case officer that you or your family member will be visa compliant/genuine.

Here is an extract from a submission I prepared for an applicant from a ‘high risk’ county.  I use this information often and have also included it in submissions for  the Migration Review Tribunal/Administrative Appeals Tribunal where I proudly claim a  100% success rate.

When taking into account  the Applicant’s age, ties to family members and [high risk country], along with consideration of the following case law extract, a finding in the Applicant’s favour can be established.  I refer to Migration Review Tribunal (MRT ) case number 1301924 [2013] MRTA 1549 (19 July 2013).   This review of a refusal decision included reference to the grant of a Sponsored Family Visitor visa for the review applicant’s mother with [other high risk country] citizenship.  I add that the MNRR report shows a similar higher rate for [other high risk country] and [high risk country] citizens. At paragraph 42 the Tribunal reasoned that the grant of the visa was based on the mother being “an older person with stronger family ties.” In view of the Tribunal’s reasoning I submit that, in the Applicants’  favour, much weight should be placed on the Applicant’s age, strong family ties  and [high risk country]  

What had happened in this case is a person came to me with a visa refusal. This person had prepared a Sponsored Family Visitor visa application on their own for their elderly mother.  One of the many reasons for refusal was that the case officer saw that the mother would prefer to stay in Australia long term  to be with her Australian Permanent Resident son and would therefore not be a genuine visitor.  This wasn’t the case at all – she much prefeThe onus is reallyrred to live in her country of origin where she enjoyed an active social life and was a respected member of the community.  My job is to show this to the case officer in every way possible.

I just love references to case law.  I love them.  I love searching for cases that have gone on to reach success at Tribunal and align with your personal situation. For example in the extract above I refer to case number 1301924 etc to show the case officer that an applicant,  being elderly,  can be more likely a genuine visitor because of their age.   Another example, I saw a refusal decision with part of the reasoning based on the fact (essentially) that the applicant had not travelled to Australia before and therefore the case officer couldn’t assess if the applicant would comply with Australian visa conditions.   Well I came right out with my weapon case number 1309955!  That the Tribunal gave much weight to the fact the family member had complied with visa conditions for countries other than Australia.

The onus is really on you and me to show the case officer that you or your family member will be a genuine visitor.  My tag line is ‘Where your story matters‘. I truly need to know your full story so I can present this to a Department case officer in the best possible light with regard to all the visa requirements.  The case officers handle too many applications – I get that – I see that it is a hard job. Which is why I try to make it easy for them. In a covering letter I tell the full story as far as it is relevant to the types of assessment the case officer will make. I see that if I don’t tell the case officer explicitly (with evidence) that your mother is very happy and settled in her country that the case officer has every reason to think she may prefer to live with you here, for example.

I had intended to include in this blog  more ways to prove financial, personal and community ties in the visa application but will save that for a future blog.  Thank you for reading.

Chime, chime…

Chime chime jennifer Khan
I like to treat staff at the Department of Immigration and Border Protection(DIBP) with a lot of respect. I have spoken with many case officers over the phone and most of them are incredibly diligent, excellent problem solvers with an impressive knowledge of immigration law and policy. There is a lot of negativity in the media about the DIBP and/or the associated Minister. However at the end of the day I am primarily concerned with my client and how the case officer perceives them.

Nevertheless it can be a battle to try and do the best thing for my client while up against never-ending legislative changes including regular fee hikes. Once upon a time on a Christmas day I was absolutely determined to work through the public holidays to make sure my client’s application landed at DIBP in the Queensland office before New Years’ day. I felt like Cinderella rushing out before the clock chimes midnight. For should the application land on the door after midnight of the 31st of December the visa application fee would rise a shocking additional $2000 +. It would be just wrong to delay that application causing my client to pay more. I had to squeeze in an entire month worth of work into about two weeks. But, I succeeded!

To make the almost-fairy story work I had to call DIBP. There I was on Christmas Eve, charged up, on fire, ready to make this work and be a hero! I made it through to DIBP over the phone. I discussed the case then went on to empathise how the fee hike must be placing a lot of pressure on the staff as there would be many trying to lodge their applications before the 31st December.

“It’s awful,” said the lethargic sounding staff member, “It’s just awful how the Department raise these fees, prevent people from coming into the country. And the refugees being sent to detention is criminal in my opinion. I have no respect for any of it.”

She sounded forlorn. I become worried to the point that if I didn’t attempt to make this poor soul feel a little better then her Christmas would be miserable. There I was on Christmas Eve cheering up a DIBP staff member over the phone. It was surreal. Just part of the ‘do it before the clock strikes midnight’ atmosphere perhaps. Typically I spend a good deal of time positively encouraging my clients. It is necessary sometimes because of  some harsh restrictions immigration law has placed on them and their loved ones – many times the stories are nothing short of tragic. But the coin had flipped and I was encouraging someone from DIBP.

This misery is caused by red tape, ‘excessive bureaucracy or adherence to official rules and formalities’ that no one can point their finger at just one individual for blame. Those who need to obtain visas have to deal with it as best we can. There are countless ‘do it before the clock strikes midnight’ moments when dealing with immigration law. Sometimes this means shuffling around clients to make sure no client suffers adverse consequences. I’ll list 12 bad consequences for you – one for every chime of the clock at midnight!

  1. visa application charge increases
  2. missing out on a chance to appeal a refusal decision to the Administrative Appeals Tribunal
  3. fail a deadline and subsequently having the dreaded section 48 ban on applying for visas! (most of them)
  4. respond to an adverse claim from an anonymous party out to destroy our chance for visa grant
  5. sometimes you will have until the clock strikes midnight on the 28th day, sometimes the 28th day + 7 days depending on certain factors
  6. get the application in before midnight when a new legislation will come into effect suddenly making your application a whole lot more difficult to have granted
  7. lodge your application before midnight lest the visa subclass you are hoping for is ‘capped and queued’ and you are left for years wondering if you may ever be able to apply for it again
  8. submit your IELTS result certificates now, you can’t use them after midnight of their third year of existence
  9. Police checks? They only survive one year.
  10. Standard Business Sponsorships? 3 years but sometimes only 18 months.
  11. Lodge you visa application before your current one expires – you have until midnight of the last day
  12. You have your visa, but make sure you enter Australia before midnight of the initial entry date..

Persuasion. The most effortful labor there is.

I often send for entire Department of Immigration and Border Protection files where a person has, after attempting a visa application themselves, had their application refused.  I also need to do this even when a person was represented by a Registered Migration Agent/Immigration lawyer so that I can see what went wrong with the original application.  Having the entire file in front of you means you can see how your case officer has structured their reasoning about your case  in their decision making process.  If you ever had a visa refused, in every instance you would want to know exactly why because a visa application is always about something of primary importance.

One day I saw in a Departmental file the work of a highly paid Immigration Lawyer.  I was dumbstruck. I simply couldn’t believe what I was seeing.  A page and a half cover letter representing the client.  And more than half of this was just ‘copy and paste’ relevant legislation.  The submission wasn’t wrong – it addressed all the mandatory criteria for grant if visa. But that was it. Where was the persuasive argument?? Where was compelling  the case officer to understand that they were dealing with honest applicants?? The visa was refused and all the clients money down the drain.

You have to be persuasive in a visa application. Absolutely. Here is a quote I like, I’ll then link it to the visa application process.

“One might even say that moving minds [persuading others] – our own as well as others- is among the most effortful labor there is” (Popova n.d.)

ABSOLUTELY!! How on earth can we expect a case officer, delegated to process thousands upon thousands of visa applications, to be convinced to grant a visa based on a cover letter that merely ticks off a basic checklist of standard visa criteria? No effortful labor could I find in this letter. No persuasive argument. None.  In many cases a case officer will grant a visa with their decision based upon such an application.  However more often the visa will be refused.  Now, having seen the type of policy case officers must give regard to when making a decision, I think that is fair enough.

In my opinion, any chance of any visa application being granted hinges upon whether or not a case officer finds the applicant to be genuine. In my further opinion it is dishonest for a representive attempt to  show your case officer that you are genuine by writing a brief cover letter – especially if you come from a country where the Department’s ‘risk-tiering’ system places you in a position where your application must face a much higher level of scrutiny.

I couldn’t look in the mirror if I ever were to send off such an application.   I see that I need to present to your case officer your full story. To construct a letter that carefully convinces and persuades your case officer to say, ‘yes’, to  approve your visa.  I need to work my way through your life story and future plans picking out even the teeniest, tinyest detail (as far as you are comfortable) and match it up with the appropriate visa criteria. Then I’ll wring out as tightly as possible everything from your life story and future plans that could add to persuading  your case officer that you are in fact genuine.

Each application I do requires the most effortful labor I know in my working life. I make no apologies, I won’t be completing your visa application in a hurry. It’s not possible, in my opinion, to perfect the type of persuasion necessary for your particular story in a short amount of time.  For me, having honesty and maintaining integrety as your representative is more important than a fast result. Underpinning this is my commitment to ensure I do all I can, whatever it takes, however long it takes, relentlessly advocating, to get your visa granted.