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Applied Australian Migration Law And Practice

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Question:

You are a registered migration agent. Ronny, aged 24 and a citizen of Canada, and Steve, an Australian citizen aged 34, approach you for assistance in responding to a letter they received from the Department of Immigration and Border Protection (DIBP). They have lodged a partner visa application for Ronny as they have been living together in a committed relationship for 3 years. Ronny came to Australia with his family when he was aged 17. His parents were in Australia on temporary work visas.

When Ronny told his family he was gay, his father disowned him. He did not return to Canada with them when their temporary work visas expired after four years. He has been living unlawfully in Australia for the past 4 years.

Unfortunately, Steve was recently diagnosed with an aggressive form of bone cancer. He has been told he will require surgery on his leg to attempt to remove the diseased bone, and that he may lose his leg. Following surgery, he will require months of chemotherapy and will need Ronny’s support during this difficult time. Steve says he cannot imagine Ronny not being here with him and, faced with the difficult time ahead, Steve convinced Ronny that they need to resolve his visa situation. With the help of some friends, Ronny and Steve lodged a partner visa application a month ago.

His doctors have told Steve that he will be off work for several months following surgery, and he will be quite limited in what he can do around the home.

They received a letter from DIBP acknowledging receipt of the application and providing them with a file reference number. The letter states in part:

As your previous substantive visa has expired you were an unlawful non-citizen at the time you lodged your application for the subclass 820 / 801 partner visa. As an unlawful non-citizen there are additional requirements that have to be satisfied before your visa application can be considered ....

Task:

On behalf of Ronny, draft submissions to the case officer addressing the relevant criteria that have to be satisfied because of his status as an unlawful non-citizen. 

 

Answer:

Introduction

Same sex Marriage is not legal in Australia. A person cannot be granted a partner visa in Australia if he is in a married relationship with another person (who is either a citizen of Australia or has a permanent resident in Australia),belonging to the same sex. However, someone is in a de-facto relationship with another person (who is either a citizen of Australia or has a permanent resident in Australia), he may be may be granted a partner visa, irrespective of the fact whether his partner belongs to the same sex or of opposite sex.[1]

Provisions relating to Partner Visa (subclass 820/801)

Permanent Partner Visa (Sub class 801) is granted to a person only after a temporary Partner Visa (sub class 820) has been granted to him. A person applying for a partner visa need to be in Australia both at the time when the application is filed and at the time when the visa is decided. However only one application needs to be filed for getting the temporary and permanent Partner visas.

The benefits accruing form the grant of a temporary visa are as follows:

  1. The applicant can stay in Australia for the time until the decision of the permanent visa.
  2. He can work anywhere in the country.
  3. He can study anywhere in the country but he will receive no aid or funding from the government.
  4. He becomes eligible to get benefit of the schemes relating to health care.

The benefits accruing from the grant of a permanent partner visa are as follows:

  1. The visa holder can stay in Australia for an indefinite period of time.
  2. He can apply for citizenship of Australia provided he fulfils the eligibility to do so.
  3. He will be entitled to social security schemes and payments.
  4. He can work and study anywhere in Australia.
  5. He can become a sponsor for permanent residence of his relatives provided they are eligible.
  6. He can travel from Australia to any other place in the world and he can also travel back to Australia for a period of five years.

For getting apartner visa(subclass 820/801)in Australia the following criteria has to be fulfilled:

  1. The applicant must be either married to a citizen of Australiaor a person having permanent residence in Australia or an eligible citizen of New Zealand at the time of lodging the application or he must be in a de facto relationship with such person.
  2. The relationship between the applicant and his partner/spouse must have to be a genuine one. They must be living together at the time of lodging the application and if they are not living separately, such separation must be temporary.
  3. The parties in the relationship must have consented voluntarily to be with each other. [2] 
 

Provisions for grant of permanent residence

Permanent residence can be granted to the applicant only after 2 years have elapsed from the date of filing of the application. However permanent residence may be granted within 2 years of the filing of the application if the following conditions are fulfilled:

  1. The relationship between the partners breaks and there exists a child of the relationship.
  2. The partner of the applicant suddenly dies and if the applicant is able to show that their relationship would have went onhad his partner lived. In addition to this, the applicant also needs to have some close personal, business and cultural ties in Australia.
  3. The relationship between the applicant and his partner breaks down and violence was caused to him or his family.
  4. At the time of filing of the application, the applicant had been in a relationship with his partner for a period of not less than 3 years, or they had been in a relationship for a period of not less than 2 years in case a child exists of the relationship.[3]

Provisions relating to applicant who is in a de facto relationship with his partner

In order to apply for a partner visa (subclass 820/801) the applicant, who is in a de facto relationship with his partner, must have been in that relationship for a period not less than 12 months from the date when the application is filed.

This requirement is exempted on the fulfilment of the following conditions:

  1. If compassionate and compelling situations, such as having dependent children, can be demonstrated.
  2. If a permanent humanitarian visa has been granted to the partner of the applicant and the relationship between the applicant and his partner existed before such visa was granted and the same was communicated to the Department of Immigration and Border Protection.
  3. The registration of the de facto relationship has been done in Australia.
  4. The age of the applicant is more than 18 years and the applicant is not a family member of his partner.

Provisions relating to an applicant not holding a substantive visa

An applicant who does not hold a substantive visa, has to provide

  1. A completed Form 40SP Sponsorship for a partner to migrate to Australia.
  2. Two declarations from permanent residents of Australia or citizens of Australia or eligible citizens of New Zealand supporting that the applicant’s relationship with his partner existed.

Sponsorship Form

A person applying for a partner visa must have a sponsor. The sponsor must fill up a sponsorship form and such form shall include details relating to his financial statusand evidence relating to his employment and also a sponsorship undertaking. 

Statutory declarations

The declarations relating to the existence of the relationship of the applicant with his de facto partner must be given by persons who are more than 18 years of age. [4] 

 

Conclusion

In the instant problem, Ronny (the applicant- a Canadian citizen) and his partner, Steve (an Australian citizen) have been in a relationship for more than 12 months before the filing of application. Since Ronny does not hold a substantive visa, in addition to the fulfilling of basic requirements, he also has to show a person who is willing and ready to be his sponsor. He also needs to produce two statutory declarations from 2 citizens or permanent residents of Australia who support the existence of Steve and Ronny’s relationship. 

 

Bibliography:

Anonymous 'Australia Rejects Partnership Visa Application of Gay Pakistan-Born Man in Relationship with Brisbane Doctor; in Danger of being Deported', International Business Times - US ed (online) 2014

Smith, Geoffrey, 'Sexuality, Space and Migration: South Asian Gay Men in Australia' (2012) 68 New Zealand Geographer 92

Triger, Zvi, 'Fear of the Wandering Gay: Some Reflections on Citizenship, Nationalism and Recognition in Same-Sex Relationships' (2012) 8 International Journal of Law in Context 268

Vrachnas, John, Migration and Refugee Law: Principles and Practice in Australia (Cambridge University Press, 3rd ed, 2011)

Vrachnas, John, Migration and Refugee Law: Principles and Practice in Australia (Cambridge University Press, 3rd ed, 2011)

Walsh, James, 'From Nations of Immigrants to States of Transience: Temporary Migration in Canada and Australia' (2014) 29 International Sociology 584

Wright, Chris F., 'How do States Implement Liberal Immigration Policies? Control Signals and Skilled Immigration Reform in Australia' (2014) 27 Governance 397

Wright, Chris F., 'How do States Implement Liberal Immigration Policies? Control Signals and Skilled Immigration Reform in Australia' (2014) 27 Governance 397

[1]Vrachnas, John, Migration and Refugee Law: Principles and Practice in Australia (Cambridge University Press, 3rd ed, 2011) 

[2]Walsh, James, 'From Nations of Immigrants to States of Transience: Temporary Migration in Canada and Australia' (2014) 29 International Sociology 584 

[3]Vrachnas, John, Migration and Refugee Law: Principles and Practice in Australia (Cambridge University Press, 3rd ed, 2011) 

[4]Wright, Chris F., 'How do States Implement Liberal Immigration Policies? Control Signals and Skilled Immigration Reform in Australia' (2014) 27 Governance 397.

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