Check List Using The Regulations As A Template eg - Spouse Visa

Introduction

Check List Using The Regulations As A Template eg - Spouse Visa

Get Enough Sleep

Visa Application And Associated Costs

Preserving Records

Record Keeping And Management - How Long Do Documents Have To Be Kept?

Initial Requirements Regarding Accepting A Retainer

Failure Of Proper File Management Can Lead To Suspension As A Migration Agent

Interpreters

Confidentiality & Notifying The Client Of Complaint Procedure

Give Your Client A Copy Of Everything

Give Your Client The Bad News Immediately

Take Care While On Holidays

Clients & English

Check Special Requirements For Offshore Visas With The Embassy's Or Consulate's Website

Don't Accept Immigration's Assertion That Decisions Have Been Made Properly

Have No Fear Of Appeals

Never Advise Your Client To Make Life Changing Decisions Prior To The Grant Of A Visa & Trust Your Instincts

Before You Set The Fee With Your Client And Before You File A Visa Application

Oral Instructions

What Can Go Wrong If You Don't Record Your Mail Properly

Positioning And Pathways And Fees (Putting All One's Eggs In One Basket)

Email & Fax Communication & Errors With Credit Cards Emerge As Troubling Issues

Preparing A Client For Merit Review Hearings Or Interviews With DIBP

Accountants And Migration Law

Passport

Berenguel - Sometimes Time Of Application Criteria Can Be Met At Time Of Decision

Bare Faced Liars & The Fraudsters

Everyone's Doing It

Bridging Visas

Visas Remain Current Until Midnight

Immigration Closes At 4pm

Looking After Secondary Visa Holders In A Visa Cancellation Process

Applying As A Secondary Visa Applicant Onshore When The Primary Visa Applicant Is Offshore

Being Illegal

Essential Prerequisites For A Ministerial Discretion Application

Last Lunge Applications

State And Territory Sponsorship

Addresses

Believing The Client

Follow Up

Make Peace With The Tax Office

No Obligation On Immigration To Chase Up Information Or Documents From Migration Agents Or Lawyers Representing A Client

Errors In Visa Applications

Spouse Visas - Unexplained Large Deposits of Money

Managing No. 8503 On Tourist Visas

Medical Consent

Statutory Declarations

Merit Review

Tax Deductibility of Migration Advice

LEGENDcom

Dates On Documents And Names On Documents

Breaking Up Is Hard To Do

Take A Statement

Case Management Software

Work Rights

Student

Check All Past Visa Applications

Revealing Convictions

Visa Holders Being On Their Best Behaviour

Email Communication With Immigration - Delete All Strings

No Without Prejudice Conversations With Immigration

Accounts Managements

What Is A Secondary Visa?

Identify Australian Citizens Who Support An Applicant

Communications

Schedule 1 Criteria

Second Thing To Do On Starting A File - Download The Relevant Part Of The Law

First Thing To Do When Starting Any File - Identify Any 'Rights Destroying' Deadlines

Lodging Paper Applications

Social Media & Smart Phones

References

Disputes About Parentage And Children

Helping People Pass The English Tests

Managing Emails

What Is The Pomodoro Technique?

Immigration Telephones Client

When Is A Visa Application Made In Australia

Apply For A Visa In Australia

No Visa Application Is An Island

The Hammock Principle

As stated earlier in this paper one should always use the regulations as a checklist. Here are the spouse visa regulations, if one does not have a ‘tick’ or N/A (not applicable) next to every paragraph then the client will not get the visa. All the evidence must be in place to meet each criterion.

SCHEDULE 1

1214C. Partner (Temporary) (Class UK)

(1) Form: 47SP or 47SP (Internet).

(2) Visa application charge: Nil.

(3) Other:

(a) Application must be made at the same time and place as an application for a Partner (Residence) (Class BS) visa.

(b) Application must be made in Australia, but not in immigration clearance.

(e) Application by a person claiming to be a member of the family unit of the holder or former holder of a prospective marriage (temporary) visa (as defined in clause 820.111 of Schedule 2) who is an applicant for a Partner (Temporary) visa may be made at the same time and place as, and combined with, the application by that person.

(f) Application by a person claiming to be a dependent child of a person who is an applicant for a Partner (Temporary) (Class UK) visa may be made at the same time and place as, and combined with, the application by that person.

(fa) An application (not being an Internet application) must be made:

(i) by posting the application (with the correct pre‑paid postage) to the post office box address or other address specified by the Minister in an instrument in writing for this subparagraph; or

(ii) by having the application delivered by a courier service to the address specified by the Minister in an instrument in writing for this subparagraph; or

(iii) if no address has been specified for subparagraphs (i) and (ii)—by lodging the application at an office of Immigration.

(g) If:

(i) the applicant is the holder of:

(A) a Skilled—Independent Regional (Provisional) (Class UX) visa; or

(B) a Subclass 475 (Skilled—Regional Sponsored) visa; or

(D) a Skilled—Regional Sponsored (Provisional) (Class SP) visa; or

(ii) the last substantive visa held by the applicant was:

(A) a Skilled—Independent Regional (Provisional) (Class UX) visa; or

(B) a Subclass 475 (Skilled—Regional Sponsored) visa; or

(D) a Skilled—Regional Sponsored (Provisional) (Class SP) visa;

the applicant must have held that visa for at least 2 years.

(4) Subclasses:

820 (Partner)

Relevant Regulations

REG 1.15A

(1) For subsection 5F(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F(2)(a), (b), (c) and (d) of the Act exist.

(2) If the Minister is considering an application for:

(a) a Partner (Migrant) (Class BC) visa; or

(b) a Partner (Provisional) (Class UF) visa; or

(d) a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

(3) The matters for subregulation (2) are:

(a) the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets; and

(ii) any joint liabilities; and

(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv) whether one person in the relationship owes any legal obligation in respect of the other; and

(v) the basis of any sharing of day‑to‑day household expenses; and

(b) the nature of the household, including:

(i) any joint responsibility for the care and support of children; and

(ii) the living arrangements of the persons; and

(iii) any sharing of the responsibility for housework; and

(i) whether the persons represent themselves to other people as being married to each other; and

(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

(iii) any basis on which the persons plan and undertake joint social activities; and

(d) the nature of the persons’ commitment to each other, including:

(i) the duration of the relationship; and

(ii) the length of time during which the persons have lived together; and

(iii) the degree of companionship and emotional support that the persons draw from each other; and

(iv) whether the persons see the relationship as a long‑term one.

(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

SCHEDULE 2

Subclass 820—Partner

820.1—Interpretation

820.111

In this Part:

court means a Court of Australia or an external Territory.

original sponsor means the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was specified in the application for a Subclass 300 (Prospective Marriage) visa as the person whom the applicant intended to marry after entry into Australia.

sponsoring partner means:

(a) in subclauses 820.211(2) and (2B) and clause 820.221:

(i) for an applicant who is, or was, the holder of a Subclass 300 (Prospective Marriage) visa:

(A) the original sponsor for the applicant; or

(B) the subsequent sponsor for the applicant; or

(ii) for any other applicant—the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was specified in the application as the spouse or de facto partner of the applicant; and

(b) in any other provision of this Part:

(i) for an applicant who is, or was, the holder of a Subclass 300 (Prospective Marriage) visa—the original sponsor for the applicant; or

subsequent sponsor means a person who:

(a) is an Australian citizen, Australian permanent resident or eligible New Zealand citizen; and

(b) is not the original sponsor for the applicant; and

Note: eligible New Zealand citizen, SOFA forces civilian component member and SOFA forces member are defined in regulation 1.03. For de facto partner, see section 5CB of the Act (also see regulation 1.09A). For spouse, see section 5F of the Act (also see regulation 1.15A).

820.2—Primary criteria

Note: The primary criteria must be satisfied by at least 1 member of a family unit. The dependent child of an applicant who satisfies the primary criteria is also eligible for the grant of the visa if the child satisfies the secondary criteria.

820.21—Criteria to be satisfied at time of application

820.211

(1) The applicant:

(a) is not the holder of a Subclass 771 (Transit) visa; and

(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

(2) An applicant meets the requirements of this subclause if:

(a) the applicant is the spouse or de facto partner of a person who:

(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and

(i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or

(ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:

(A) has turned 18; and

(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(d) in the case of an applicant who is not the holder of a substantive visa—either:

(i) the applicant:

(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

(B) satisfies Schedule 3 criterion 3002; or

(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

(2A) An applicant meets the requirements of this subclause if:

(a) the applicant is:

(i) a SOFA member; or

(ii) a SOFA forces civilian component member; or

(b) the applicant:

(i) is a dependent child of a person referred to in paragraph (a); and

(ii) holds a valid national passport and certificate that he or she is a dependant of a SOFA forces member or a SOFA forces civilian component member, as the case requires.

(2B) The spouse or de facto partner of the applicant is prohibited from being a sponsoring partner if:

(a) the spouse or de facto partner is a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application; and

(b) on the date of grant of that visa:

(i) the applicant was a former spouse or former de facto partner of that woman, having been divorced or permanently separated from that woman; or

(ii) the applicant was the spouse or de facto partner of that woman, and that relationship had not been declared to Immigration.

(5) An applicant meets the requirements of this subclause if:

(a) the applicant is not the holder of a substantive visa; and

(b) the applicant last entered Australia as the holder of a Subclass 300 (Prospective Marriage) visa; and

(c) the applicant has married the Australian citizen, Australian permanent resident or eligible New Zealand citizen whom the applicant entered Australia to marry; and

(d) the applicant ceased to hold a substantive visa after marrying that Australian citizen, Australian permanent resident or eligible New Zealand citizen; and

(e) the applicant is the spouse of the sponsoring partner; and

(f) the applicant is sponsored:

(i) if the applicant’s spouse has turned 18—by the spouse; or

(ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:

(A) has turned 18; and

(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

(6) An applicant meets the requirements of this subclause if the applicant:

(a) is the holder of a Subclass 300 (Prospective Marriage) visa; and

(b) has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and

(i) if the applicant’s spouse has turned 18—by the spouse; or

(ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:

(A) has turned 18; and

(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(d) continues to be the spouse of the sponsoring partner.

(7) An applicant meets the requirements of this subclause if:

(a) the applicant is the holder of a Subclass 300 (Prospective Marriage) visa; and

(b) the applicant has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and

(d) the applicant satisfies the Minister that the applicant would have continued to be the spouse of the sponsoring partner if the sponsoring partner had not died; and

(e) the applicant has developed close business, cultural or personal ties in Australia.

(8) An applicant meets the requirements of this subclause if:

(a) the applicant is the holder of a Subclass 300 (Prospective Marriage) visa; and

(b) the applicant has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and

(d) any 1 or more of the following:

(i) the applicant;

(ii) a member of the family unit of the applicant who has made a combined application with the applicant;

(iii) a dependent child of the sponsoring partner or of the applicant or of both of them;

has suffered family violence committed by the sponsoring partner.

(9) An applicant meets the requirements of this subclause if:

(a) the applicant is not the holder of a substantive visa; and

(b) the applicant has been the holder of a Subclass 300 (Prospective Marriage) visa; and

(c) while that visa was valid, the applicant married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act; and

(d) the relationship between the applicant and the sponsoring partner has ceased; and

(e) any 1 or more of the following:

(i) the applicant;

(ii) a member of the family unit of the applicant who has made a combined application with the applicant;

(iii) a dependent child of the sponsoring partner or of the applicant or of both of them;

has suffered family violence committed by the sponsoring partner.

Note: For special provisions relating to family violence, see Division 1.5.

820.212

If:

(a) the applicant is the holder of:

(ii) a Subclass 475 (Skilled—Regional Sponsored) visa; or

(iii) a Subclass 487 (Skilled—Regional Sponsored) visa; or

(iv) a Skilled—Regional Sponsored (Provisional) (Class SP) visa; or

(b) the last substantive visa held by the applicant since entering Australia was:

(i) a Skilled—Independent Regional (Provisional) (Class UX) visa; or

(ii) a Subclass 475 (Skilled—Regional Sponsored) visa; or

(iii) a Subclass 487 (Skilled—Regional Sponsored) visa; or

(iv) a Skilled—Regional Sponsored (Provisional) (Class SP) visa;

the applicant has substantially complied with the conditions to which that visa was subject.

820.22—Criteria to be satisfied at time of decision

820.221

(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:

(a) continues to meet the requirements of the applicable subclause; or

(b) meets the requirements of subclause (2) or (3).

(2) An applicant meets the requirements of this subclause if the applicant:

(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and

(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and

(3) An applicant meets the requirements of this subclause if:

(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and

(b) either or both of the following circumstances applies:

(i) either or both of the following:

(A) the applicant;

(B) a dependent child of the sponsoring partner or of the applicant or of both of them;

has suffered family violence committed by the sponsoring partner;

(ii) the applicant:

(A) has custody or joint custody of, or access to; or

(B) has a residence order or contact order made under the Family Law Act 1975 relating to;

at least 1 child in respect of whom the sponsoring partner:

(D) has a residence order or contact order made under the Family Law Act 1975; or

(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

Note: For special provisions relating to family violence, see Division 1.5.

(4) The sponsorship mentioned in paragraph 820.211(2)(c), (5)(f) or (6)(c) has been approved by the Minister and is still in force.

820.221A

Unless the applicant:

(a) is, or has been, the holder of a Subclass 300 (Prospective Marriage) visa; and

(b) is seeking to remain permanently in Australia on the basis of the applicant’s marriage to the person who was specified as the intended spouse in the application that resulted in the grant of that Subclass 300 (Prospective Marriage) visa;

the sponsorship of the applicant under clause 820.211 has been approved by the Minister.

Note: Regulations 1.20J, 1.20KA and 1.20KB limit the Minister’s discretion to approve sponsorships.

820.223

(1) The applicant:

(a) subject to subclause (2)—satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and

(b) if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.

(2) Paragraph (1)(a) does not apply to an applicant referred to in subclause 820.211(5).

820.224

(1) Each member of the family unit of the applicant who is an applicant for a Subclass 820 visa is a person who:

(a) subject to subclause (2)—satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and

(b) if the person had turned 18 at the time of application—satisfies public interest criterion 4019; and

(1A) Each member of the family unit of the applicant who is not an applicant for a Subclass 820 visa is a person who:

(a) subject to subclause (2)—satisfies public interest criteria 4001, 4002, 4003 and 4004; and

(b) satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

(2) Paragraphs (1)(a) and (1A) (a) do not apply to an applicant who:

(a) is a dependent child of an applicant referred to in subclause 820.211(5); and

(b) entered Australia as the holder of a visa of the same class as the visa held by that other applicant.

820.225

If a person (in this clause called the additional applicant):

(a) is a member of the family unit of the applicant; and

(b) has not turned 18; and

public interest criteria 4015 and 4016 are satisfied in relation to the additional applicant.

820.226

The applicant satisfies public interest criteria 4020 and 4021.

820.3—Secondary criteria

Note: A dependent child, or a member of the family unit, of an applicant who satisfies the primary criteria is also eligible for the grant of the visa if the child or member of the family unit satisfies the secondary criteria.

820.31—Criteria to be satisfied at time of application

820.311

The applicant is:

(a) either:

(i) a dependent child of a person who has applied for a Partner (Residence) (Class BS) visa; or

(ii) a member of the family unit of a person who:

(A) is the holder of, or has been the holder of, a Subclass 300 (Prospective Marriage) visa; and

(B) has applied for a Partner (Residence) (Class BS) visa; and

(b) the sponsorship (if any) in respect of that person includes the applicant; and

820.312

In the case of an applicant who is not the holder of a substantive visa—either:

(a) the applicant:

(i) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause 820.211(2A); and

(ii) satisfies Schedule 3 criterion 3002; or

(b) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

820.313

If:

(a) the applicant is the holder of:

(ii) a Subclass 475 (Skilled—Regional Sponsored) visa; or

(iii) a Subclass 487 (Skilled—Regional Sponsored) visa; or

(iv) a Skilled—Regional Sponsored (Provisional) (Class SP) visa; or

(b) the last substantive visa held by the applicant since entering Australia was:

(i) a Skilled—Independent Regional (Provisional) (Class UX) visa; or

(ii) a Subclass 475 (Skilled—Regional Sponsored) visa; or

(iii) a Subclass 487 (Skilled—Regional Sponsored) visa; or

(iv) a Skilled—Regional Sponsored (Provisional) (Class SP) visa;

the applicant has substantially complied with the conditions to which that visa was subject.

820.32—Criteria to be satisfied at time of decision

820.321

In the case of an applicant referred to in clause 820.311, the applicant:

(a) is a person who is dependent on, or a member of the family unit of, another person who having satisfied the primary criteria, is the holder of a Subclass 820 (Partner) visa (the person who satisfies the primary criteria); or

(b) is a person to whom each of the following applies:

(i) the person made a combined application with the person who satisfies the primary criteria;

(ii) subsequent to the combined application being made, the person was found by the Minister not to be dependent on, or a member of the family unit of, the person who satisfies the primary criteria;

(iii) subsequent to the person who satisfies the primary criteria being granted a Subclass 820 (Partner) visa and a Subclass 801 (Partner) visa—the Tribunal found the person to be dependent on, or a member of the family unit of, the person who satisfies the primary criteria.

820.323

(1) The applicant:

(a) subject to subclause (2)—satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and

(b) if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.

(2) Paragraph (1)(a) does not apply to an applicant referred to in subclause 820.311 who:

(a) is a dependent child of another applicant referred to in subclause 820.211(5); and

(b) entered Australia as the holder of a visa of the same class as the visa held by that other applicant.

820.324

If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.

820.325

The sponsorship mentioned in paragraph 820.311(b) has been approved by the Minister and is still in force.

820.326

The applicant satisfies public interest criteria 4020 and 4021.

820.4—Circumstances applicable to grant

820.411

The applicant must be in Australia, but not in immigration clearance, when the visa is granted.

820.5—When visa is in effect

820.511

Temporary visa permitting the holder to travel to and enter Australia until:

(a) the holder is notified that his or her application for a Subclass 801 (Partner) visa has been decided; or

(b) that application is withdrawn.

820.6—Conditions: Nil.

8503

The holder will not, after entering Australia, be entitled to be granted asubstantive visa, other than a protection visa, while the holder remainsin Australia.

[1] “No man is an Island, entire of itself; every man is a piece of the Continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friends or of thine own were; any man’s death diminishes me, because I am involved in Mankind; And therefore never send to know for whom the bell tolls; It tolls for thee.”

[2] Bryan A Garner

[3] Many suppliers issue such receipts in June in each year to their customers to assist their customers with tax returns.

[4] GST is not payable on Immigration visa fees, police checks etc so this distinction needs to be made in the GST portion of the receipt

[5] Currently professor of psychology at the University of Manchester, UK

[6] Mae West in the 1937 film ‘Every Day’s a Holiday’ said this memorable line ‘I always say, keep a diary and some day it’ll keep you’.

[7] MIRO was the Migration Internal Review Office, a body within DIMA which was the first tier of merit review.

[8] See Migration Agents Amendment Regulations 2006 (No 2), Schedule 1 Item [19], with effect from 1 October 2006.

[9] The comparable WA provision is s. 13 of the Limitation Act 2005, the Victorian provision is s. 5 of the Limitations of Actions Act 1958 & the Queensland provision is s. 10 of the Limitations of Actions Act 1974. All have exactly same effect as NSW.

Barbara DavidsonNovember 16, 2017

Check List Using The Regulations As A Template eg - Spouse Visa

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