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Implication Of Waensila Decision

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Question:

Discuss about the Implication Of Waensila’s Decision On Petra’s Case.
 
 

Answer:

Letter of Advice

To

Mrs. Anh

Australia

Sub: Application for permanent residence

Respected Madam

The matter related to visa is one of the most essential things in Australia. Every year many people come to this country and apply for visa for several purposes. The nature of visa can be temporary or permanent. The processes are different compared to others. The applicant has to show all the reasonable grounds regarding to his application and he has to meet all the requirements made by the Australian Migration Act for the same[1]. Considering the importance of visa application, separate board has been concocted in Australia and it is required that, the visa applicant should have to file all their queries before the institution. The name of the institution is Department of Border Protection (DIBP).

In this case, it has been observed that you have been come to Australia based on the temporary Prospective Marriage (subclass 300) visa. According to the legal ground of this visa, the applicant is eligible to come in Australia to marry their partner. The nature of the visa application is temporary in nature and the applicant stay for nine months. However, the applicant can ask for permanent visa under subclass 801 visas. According to this, in case the marriage between the applicant and his or partner is happened in accordance with Australian Law, the applicant can make the application. Further, any of the spouses must be an Australian citizen. However, the applicant should have to ask for the temporary visa first (Subclass 820) and then he can make application for the permanent visa. Therefore, Anh is advised to apply for temporary partner visa (subclass 820) first.   

Further, it has been observed in this case that the applicant has to face family violence and be abused by her partner. According to Migration Regulation 1994, a visa applicant can file case for family violence if he possessed a visa under subclass 309, 820 and 300[2]. Therefore, according to the provision, Mrs. Anh can file case or family violence, as she holds a visa under subclass 300. It has been provided under the Regulation, if a visa holder wants to stay in Australia on permanent basis after being abused by his or her partner, he has to inform the Department of Border Protection (DIBP) about his present condition and can get the option if the authority get satisfied that the applicant has met all the requirements clearly. In addition, the applicant should have to give all the relevant evidences. The evidence can be classified as judicial and non-judicial evidence. After the submission of the evidences, the authority will send the evidences to the expert and if the expert has approved the same, the authority can accept his claim.

 


Therefore, it is advised to Mrs. Anh that she should claim before the DIBP for the permanent visa in accordance with the process. However, as per the law, she has to make an application for subclass 820 visa first.

Letter of Advice

To

Mrs Petra

Australia

Sub: Implication of Waensila’s decision on Petra’s case

Respected Madam

In Australia, there are many provisions that allow an applicant to get the benefit of several visa options. There are certain rules prescribed for the partner visa application. In this case, it has been observed that you are a bridging visa holder. According to the Migration Act, a person is allowed to stay in Australia if the validity of current visa of the applicant has been ended before lodging the application for partner visa. There are certain classes of bridging visa such as bridging visa A or B or C. this kinds of visa has been provided to the applicant if he works in Australia, or came to the provinces for continue his studies or came for the enrolment under health care scheme Australia. However, any bridging visa holder can make an application for the temporary partner visa (Subclass 820) or permanent partner visa (subclass 801).

According to the Migration Act, in case making an application for the partner visa, the applicant should have to meet the requirements made under Schedule 3 of Migration Regulation. According to the schedule 3, an applicant should have to file visa application within 28 days of expiration of previous visa. There are certain mandatory rules for the applicant regarding the visa application under Schedule 3 of the Regulation. According to this schedule, the visa applicant should have to hold the substantive for the reasons that are beyond her control. Further, there are certain compelling grounds that could not be avoided by her. In addition to this, the applicant should take the oath that he will comply with all the requirements prescribes by the authority to that effect. The applicant is also required to show that the previous visa was not falling under the criteria of “no further stay”.

However, problems cropped up regarding the critical analysis of compelling grounds and many conceptions are there for the ground. There are certain grounds where the applicant should not have to meet all the requirements of schedule 3 of Migration Regulation[3]. According to DIBP, the applicant should have to show the compelling grounds properly. Compelling grounds are those where the applicant has no direct or indirect influence. According to the Administrative Tribunals and the federal Circuit Court, the applicant should have to establish the facts for the compelling ground and it is the discretionary power of the court to decide whether compelling circumstances can be taken into consideration or not. However, this notion has been confirmed in the case of Waensila v Minister for Immigration and Border Protection[4]. In this case, court has decided that compelling grounds should have to take into account.

In this case, it has been observed that Petra’s husband met with an accident and got paralyzed. It can be stated that this incident was beyond her control and she has to take care of her husband. Therefore, her condition meets the requirements under compelling ground and waiver principle of schedule 3 can be applied to her case.

 

Bibliography:

'Migration Regulations 1994' (Legislation.gov.au, 2018) <https://www.legislation.gov.au/Details/F2017C00582> accessed 2 May 2018

Panizzon, Marion, et al., eds. The Palgrave Handbook of International Labour Migration: Law and Policy Perspectives. Springer, 2016.

Segrave, Marie, and Cathrine Burnett-Wake. "Addressing Family Violence through Visa Sponsor Checks: A Step in the Right Direction." Current Issues Crim. Just. 29 (2017): 155.

Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32

Woodcroft, Holly, Lucy Barnes, and Calvin Wilkinson. "No road home for asylum seekers in Queensland." Parity 27.10 (2014): 10.  

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