Overview of the Situation
Stella from Ireland met Joel who was holidaying in Ireland. Joel lives in Bondi, Sydney and is an Australian citizen and is on the TV show, Bondi Rescue. Not long after meeting each other, they started a relationship.
In October 2016, Stella was granted a twelve-month Visitor (Class FA) (subclass 600) visa with condition 8503 imposed on it. She arrived in Australia in November 2016.
Joel and Stella continued their relationship and moved in together. Subsequently they married in a small beach ceremony in Bondi, Sydney, on 1 April 2017. A clip of the ceremony will be shown on an upcoming episode of Bondi Rescue with their consent.
Today, the couple came to see you to discuss Stella’s immigration situation. Stella’s visa will expire in two weeks and she desperately wants to remain in Australia. During the initial meeting, you discovered that Joel has had a long-standing psychiatric condition that has required treatment over a number of years. However, the stress of the possibility of Stella having to leave Australia has exacerbated his illness to the level where he is no longer able to work as a lifeguard and may lose his job on Bondi Rescue. They are also worried that the tabloids will get wind of the situation and publicise it, which would make the situation worse for Joel. Stella and Joel have had to move into Joel’s parents’ house and Stella needs to care for Joel. Joel’s parents are elderly and are unable to care for him. Joel’s
treating doctors and psychologist are concerned about his deterioration and the effect of the stress from the uncertainty of whether Stella can remain in Australia.
Stella and Joel are hoping that Stella will be able to stay in Australia by applying for a partner visa. They want your advice about whether she can apply for a partner visa while in Australia and your help to achieve this.
What advice would you give Stella about whether or not she can validly apply for a partner visa while in Australia? Explain your advice by reference to relevant legislative provisions.
Based on your advice in 1, on behalf of Stella, prepare any necessary submission to the Department of Immigration and Border Protection. Include a list of any supporting documentation that you would need to provide.
Write a Letter Of Advice to Stella advising whether she has any merits review options if the submission is not accepted.
Sub: Application for valid partner visa
I have recently gone through your query regarding the valid application for the partner visa in the territory of Australia. It has been informed by you that you are holding the Visitor (class FA) (sub-class 600) visa and your visa has certain obligations under 8503 that will restrict you to apply for any temporary or permanent visa to stay in this territory further. However, by considering your present situation, I can provide you certain advices to that effect.
The visa you want to apply for is a visa that holds the character of sub-classes 820, 801, and named as partner visa. This visa allows the partner of a citizen who is the permanent residence of Australia and gives the applicant a chance to stay in the territory of Australia. The first one is sub class 820 that allows the applicant to live on temporary basis. To obtain the visa, one should have legal relationship with one permanent resident of Australia.
However, before getting the permanent visa, one has to apply for the temporary visa and can apply for the permanent visa after two years of it. The main dilemma in your case is that there is condition in your visa regarding condition 8503 that restrict you to apply for any further visa. There are certain provisions to waive the conditions of 8503 if any situation cropped up that cannot be control by the applicant and the outcome of the situation can be changed the circumstance of the applicant. One can applied for the waiver by fill up the form 1447 or by writing to the Department of Immigration and Border Protection.
You are, therefore requested to apply for the waiver and the temporary visa under sub class 820 to achieve your aim validly.
Department of Immigration and Border Protection
Subject: waiver of condition 8503
This is to inform you that my client Mrs Stella has a visitors’ visa that particularly form the sub-class 600 and there is a condition regarding 8503 has been imposed on her visa. It has been observed that the ground relating to the 8503 contains the provision of no further stay in the provinces of Australia. This means the visa holder could not apply for any temporary or permanent visa option. It is to be stated that under your department it has been stated that the provisions of the conditions 8503 is a mandatory ground.
Advice on Applying for a Partner Visa
However, it is requested to you to consider the waiving grounds of the conditions in the case of my client. It has been mentioned that if there is any situation accrues that forced the visa holder to stay in the provinces of Australia for further time and the visa holder has no control over the issue, the conditions regarding the same can be waived. It is also been stated that the outcome of the situation should have to affected the life of the visa holder with irreparable loss and personal injury. It has been mentioned under the waiving rules that the conditions can cause regarding matrimonial tie or pregnancy or any other emergency issues that are uncontrollable for the visa holder.
It is to be stated to you that my client was married with Joel who was working as lifeguard in the beach of Bondi in the coast of Sydney. The both had married in November 2016 and stay in Bondi as spouse. It is to be noted that the marriage was legal in nature. It is also to be stated that husband of my client is a patient of chronic psychiatric disorder and he had to leave the job based on his illness. Both the couple had forced to stay at the parental house of Joel in Sydney to look after Joel. It has been suggested by Doctor that Joel has to undergo treatment for the same for a couple of years and it is important to take care of him. The parents of Joel are elder and it is not possible for them to take sufficient care of him. The family affairs of the same are also to be resolved by my client.
It is also to be stated that the condition of Joel is deteriorating day today and it is suggested by the doctor that stress can be affected the life of him. It is stressful thing to him that the validity of the visa of his wife Stella is going to be expired within certain times.
It is no matter to state that this is an emergency matter and if my client does not allowed to apply for the permanent visa, her life can be affected and the life of the husband will also be getting harmed. It is required to allow the application of my client by considering her present state.
Letter of Advice
The Waiver of Condition 8503
Sub: Letter of advice regarding merit review option.
You had come to our office on previous occasion and we are glad that you have come again to look for help. We will try our best to provide you the ultimate solution. It has been informed by you that you had applied for the sub class 820 visas to the Department of Immigration and Border Protection Force and the same was rejected. There are certain options available for you so that you can ask for the reconsideration of the same to the authority and the Migration Act 1958 provides a detailed discussion regarding the same.
On the first occasion, it is advised to you that there is a waiver provision present in your sub class 600 visa that has been imposed by the condition 8503. Condition 8503 contains certain provision that restrict the applicant to apply for further visa option regarding the stay in the provinces of Australia. However, there are certain exceptions regarding the same that has been provided by the Migration Act 1958.
You are, therefore suggested to apply before the Department of Immigration and Border Protection to reconsider the matter. You can also make an application before the tribunal and the relevant provision regarding the same has been engraved under section 475 of Migration Act 1958.
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