A bumpy and often unhappy journey – but worth it in the end!
Our client and her partner, who we will call Vicky and Chris came to us after having a Subclass 309 Offshore Partner Visa refused by an overseas office of the Department of Home Affairs. I will not disclose the office name only to tell you that it begins with ND.
The visa refusal occurred in August 2018.
Reasons for the refusal
Vicky and Chris (Chris was the Visa applicant situated in India) had their Subclass 309 Visa refused because the case officer in the overseas office decided that the relationship was not genuine.
The reasons for this decision were:
- There was a significant age difference between Vicky and Chris (Vicky was in her early 60s and Chris was mid 30s).
- Their marriage was a “love” marriage rather than an arranged marriage, which was viewed negatively by the case officer. At the interview, the case officer had directly asked Chris why he had not married a person that his parents had arranged for him.
- The case officer was concerned that Vicky had not met Chris’s mother (Chris’s father had died before the visa application was lodged).
- Chris worked in hospitality, where it was forbidden to develop a relationship with a customer, but nevertheless they have begun a relationship whilst Violet was being looked after by Chris who was a member of staff of the hospitality company. The case officer did not like that he had “broken the rules”.
- The case officer also was not impressed that the couple would be unable to have children, as Vicky was past childbearing age.
- The marriage was “intercultural” (we took that to mean that Vicky was not from India an/or not the same religion as Chris).
But they had lots of evidence
The couple had extensive evidence of their relationship. They had copious records of their continuous communications, holidays together, photographs, sharing of finances their deep commitment and genuine love for each other.
Before the application was lodged, Vicky and Chris received poor migration advice. Chris had travelled to Australia as the holder of a visitor Visa with no conditions, yet the migration advice that they had received, advised them to go offshore so that Chris could lodge a Prospective Marriage Visa (Subclass 300)!
The reason for my exclamation mark is that Chris could have lodged an onshore Subclass 820 Visa in Australia because his Visitor Visa had no conditions, and even at that stage, they had sufficient evidence of their de facto relationship.
Had he done so, he would have been able to remain in Australia throughout the processing of the Visa application (with full work right), and even if the visa had still been refused, he would have been able to stay in Australia until the review application was heard at the Administrative Appeals Tribunal.
In any event, Vicky and Chris married in Australia after the Prospective Marriage Visa was lodged, and the application was converted to a Subclass 309, Offshore Provisional Partner Visa by the action of the Migration Regulations which cover situations such as that.
As things transpired, the Subclass 309 Visa application was refused the day after Chris’s visitor visa expired and he was on his way home to India on a plane. The reality was that the moment he left immigration clearance at the airport the case officer moved to refuse his application.
When we later studied the file notes which we acquired from the Tribunal, it was apparent that the Case Officer had decided approximately one year before to refuse the Visa, as she had made a note of it. She merely waited to refuse the visa application after my client had left Australia. By any measure, it was a cruel move.
The couple were heartbroken.
The Tribunal hearing
Even though Chris was back in India, Vicky was able to lodge a review application on his behalf at the Administrative Appeals Tribunal (AAT). The AAT has the power to have a new look at the application and decide for itself whether that application meets the requirements for the grant of a Partner Visa.
We requested an expedited hearing (i.e. that the AAT speed up the hearing) from the Administrative Appeals Tribunal, and it very kindly agreed to expedite the matter.
We were called to the Tribunal hearing in February 2019.
Unfortunately, despite the early hearing, we waited eight months for a decision.
After the eight month wait, the Tribunal Member delivered an oral decision. It is unusual to be called to an oral decision so far after the initial hearing (most oral decisions are delivered immediately after the hearing).
Despite the weirdness of the oral decision, and the length of time that the Tribunal Member took to deliver the decision, the decision went in favour of my clients and the matter was remitted back to the Department of Home Affairs (back to the overseas office) in October 2019, to be decided in accordance with the law.
Request for further information received from the DHA
Approximately five weeks later we received a request for information from the overseas office – which was simply for police certificates for both the applicant and the sponsor, and a medical check for Chris.
We provided a timely response to the request and in our submissions, asked that our client be granted the Subclass 100 Permanent Partner Visa on the basis that he had waited so long for a visa grant, and that his relationship with Vicky was as strong as ever.
Once the police certificates and health checks were completed (and there was a slight delay with one of the police certificates from overseas) the Visa was granted in January 2020.
Straight to Permanent Residence!
A Subclass 309 Provisional Partner was granted, and immediately, our client was granted a Subclass 100 Permanent Partner Visa – he went straight to Permanent Residence.
It goes without saying that our clients are delighted, and they are looking forward to spending the rest of their lives together in Australia as a married couple.
A very satisfying result for all concerned.
We were told we had made “dreams come true”!
April 2016 – Partner Visa application
August 2018 – Partner Visa Refusal
February 2019 – Review application heard at the AAT
October 2018 – Application remitted by the AAT
January 2019 – Visa granted!
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Having Maggie’s support and advice throughout our application process for my wife’s visa has been amazing!! She has always given me time and advice whenever I’ve had questions or concerns. I have recommended AHWC Immigration to friends in the past and will continue to do so in the future. Visa’s are an emotional and difficult process to go through, and knowing Maggie was there to support us has made the world of difference.Sam Tait (Google Review)