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LLW3007 Australian Migration Law

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After attending a business conference in Beijing in January 2017, George Olsen, an Australian citizen, was returning to Sydney on a Qantas flight when he found himself seated next to an attractive female Chinese passenger. George soon struck up a conversation with his fellow passenger and having introduced himself, discovered that the his fellow passenger’s name is May, who has been awarded a scholarship by the Australian Government to study a Doctor of Nutrition Science course at Melbourne University. George tells May they share a common interest as he is a pharmacist and was at the AsiaPacific Pharmacists Congress in Beijing, where he presented a paper on the importance of nutritional aspects in the management of a patient’s medication regime. With this common interest, George and May got along quite well and before disembarking, exchanged contact details. May informs George that the university had arranged accommodation for her at a residential college on campus, while George says that he lives by himself in an inner-city apartment.

After arrival in Melbourne, as it happened to be Chinese New Year, George invited May to go out with him to a Chinese New Year banquet, hosted by his sister-in-law Connie, who is also Chinese. At the banquet, George introduced May as a friend to his other relatives and May was well received by the Olsen family

George and May continued to go out and over time, have fallen in love. Then in January 2018, May finally agreed to move in with George at his South Yarra apartment. Now May’s course is about to finish and she is faced with the prospect of having to go home to China. One evening, George broke down and told May he did not want her to leave, whereupon May said she also felt the same way. George’s sisterin-law Connie, who had herself been sponsored by husband Peter on a Partner visa, suggested they see a migration agent about getting a partner visa for May as well.

You have graduated from the Graduate Diploma course in Migration Law and have just obtained your registration as a migration agent. After returning from a pub lunch, you find George and May in your office reading a copy of the Consumer Guide which your receptionist has given them. You invite them into your office and after ascertaining that they are here to seek advice on how May can stay in Australia on a partner visa, ask to see May’s passport.

You can see from her passport that May’s full name is Chen Yong Mei (she prefers the Anglicised version May, “to make things easier”), born 15 August 1987 in Beijing and holds a student (subclass 500) visa with the conditions 8105, 8202, 8501, 8516, 8517, 8532, and 8533. The visa still has two months validity left. George informs you that he is 2 years older than May and both say they have never been married nor do they have any children from any current or previous relationships. They say whilst they are not aversely attracted to the notion of marriage, they would like to find out whether they qualify as a de facto couple first.

QUESTION Prepare a letter of advice, in plain English, for May regarding the following (You must support your advice with reference to the specific regulatory provisions): 1. What is the definition of ‘spouse’ and ‘de facto relationship’ and do they qualify as a de facto couple. 2. Can May apply for a Partner visa in Australia without having to return to China? 3. If she can apply for a Partner visa, what visa(s) should she apply for and the procedures for making a valid application. 4. What are the criteria required for the grant of the Partner visa? 5. If May’s application for the Partner visa is not finalised by the time her student visa expires (bearing in mind her visa only has two more months to go) and she wishes to travel overseas, can she do this? And how? 6. What is the probability of success of May getting the Partner visa granted? May asked you this question specifically.

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