Partner Visa Case Study
Written By Michael Walker
Tue, Oct 28, 2014
Stephanie has been the holder of a student visa in Australia for almost 4 years, studying a range of business courses. Her ultimate aim was to gain an Australian Business degree, following completion of a number of business related Diploma courses.
While studying in Australia, Stephanie met and fell in love with her Australian Citizen partner, Steve. After dating for about 6 months, the couple decided that they would move in together and thereby establish a ‘de facto’ or common law marriage relationship. While the couple were happy together, Stephanie’s objective was to gain her prized Australian Business Degree and so decided she would maintain her Australian student visa status. However, Stephanie would need to seek to re-new her student visa, which was due to expire in 30 days, in order that she could continue on to study her Business Degree. Stephanie lodged an application for a Higher Education; sub-class 573 visa with the Department of Immigration and Border Protection (DIBP) and waited for the outcome. The time of processing of the 573 application went beyond the expiry date of her current visa and accordingly, Stephanie was placed on a Bridging Visa A, until such time as the new application was decided.
While waiting for the 573 application to be decided, Stephanie was the victim of a road accident and suffered significant physical and mental trauma as a result. While in recovery, Stephanie’s 573 visa was refused by DIBP, as the case officer considered Stephanie was not a genuine student, based on her relatively long student visa history in Australia. The case officer was of the view that Stephanie’s student visa application was simply made to prolong her stay in Australia.
While recovering in hospital, Stephanie did not receive the refusal notice and by the time she returned home with Steve and was in receipt of the refusal notification, she was too late to lodge a Migration Review Tribunal (MRT) application. That meant that Stephanie only had 7 days remaining on her existing Bridging Visa and therefore, she either had to lodge another application for which she may be eligible or depart Australia, leaving Steve alone.
Stephanie and Steve consulted with a TSS Immigration registered migration agent. Following that meeting, it was agreed that Stephanie should lodge a partner visa, sub-class 820 visa as soon as possible and thereby maintain her Bridging Visa status, so that she could remain lawfully in Australia with Steve. As the couple had now cohabitated for a period of greater than 12 months, under Steve’s sponsorship, Stephanie met the core criteria for the partner visa.
However, as Stephanie only held a Bridging Visa at the time of application, she had to overcome the roadblock provided by Schedule 3 of the Migration Regulations of Australia. Schedule 3 provides that for a person who does not hold a substantive visa (i.e. a visa other than a bridging visa), DIBP may refuse the application, unless compelling and compassionate circumstances apply to the application.
As a result, TSS Immigration made submissions to address the compelling and compassionate criteria, supported by Doctor’s and Psychologist’s reports. It was submitted that the road trauma suffered by Stephanie was beyond her control and that she had suffered significant physical and psychological injury, which saw her inadvertently miss the deadline to MRT application, for the purposes of her refused Student Visa application and that in any event, she was in a genuine relationship with her Australian Citizen sponsor, Steve.
As a result of the submissions provided, Stephanie was ultimately granted her partner visa, sub-class 820.
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