Looking After Secondary Visa Holders In A Visa Cancellation Process
TABLE OF CONTENTS
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
Prepare Your Client For The Oath
Ideas For Chronologies For Client Files
Immigration Goes Into Hibernation On 30 June Each Year
Australia Closes Down Between Christmas & New Year
Have An Industrial Strength Office Set Up At The Office And At Home
What Is A Permanent Residence Visa?
Practice Together Or Practice In Groups
A Proper Email Account And Email Management
Undercharging And Undercutting On Fees
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
It is possible to rescue a secondary visa holder if the primary holder faces visa cancellation. But it must be done prior to the cancellation process. The obvious strategy is to apply for another visa which that secondary visa holder might be eligible for. An obvious one is a student visa.
Given that things can from time to time go haywire for visa holders, it is good advice to advise secondary visa holders of temporary visas (like subclass 457’s) that they should position themselves to apply for a visa in their own right in due course, like a student visa (or even their own subclass 457) if something happens to the primary visa holder (like he or she loses his or her job).
This is a particularly useful strategy in character cases.
DON’T CONTACT Immigration ABOUT AN ILLEGAL CLIENT UNTIL YOU HAVE THOROUGHLY WORKED OUT YOUR STRATEGY
If a client walks in the door and they are illegal, the temptation is to call Immigration to try and sort it out. Don’t do this. Immigration officers are never friends of an illegal. First up make a thorough and full assessment of the client’s visa position. If the client has a visa label then that is the first place to start to investigate the client’s position. If you have no visa label and the client is uncertain of his visa status, only then call Immigration to work out the exact position. When you do call give only the minimal information away – give your client as much room to move as possible.
What you immediately have to assess is whether it is worth leaving Australia quickly to avoid the 3 year ban.
It can be a very tricky situation. An illegal or a person on a bridging visa C, D or E could face a three year ban from re-applying for a visa. One needs to carefully access whether the client should leave Australia if there is some prospect of avoiding the 3 year ban.
People can avoid the 3 year exclusion on becoming unlawful or holding a Bridging visa C, D or E period by leaving Australia relatively promptly after becoming unlawful. It is particularly relevant for students who drift into becoming unlawful. Often clients have not had this option carefully explained to them. Here is what Public Interest Criteria (PIC) 4014 says as relevant:
(1) If the applicant is affected by either of the risk factors specified in subclauses… (4):
(a) the application is made more than 3 years after the departure of the person from Australia referred to in that subclause; or
(b) the Minister is satisfied that,….:
(i) compelling circumstances that affect the interests of Australia; or
(ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible NZ citizen;
justify the granting of the visa within 3 years after the departure.
(4) Subject to subclause (5), a person is affected by a risk factor if the person left Australia as:
(a) an unlawful non-citizen; or
(b)the holder of a Bridging C…, D or E visa.
(5) Subclause (4) does not to apply.. if:
(a) the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect…; or
(b) a bridging visa held by the person at the time of departure was granted:
(i) within 28 days after a substantive visa held by the person ceased to be in effect; or
(ii) while the person held another bridging visa granted:
(A) while the person held a substantive visa; or
(B) within 28 days after a substantive visa… ceased to be in effect…
PIC 4014(5)(ii) is unnecessarily complex. Here is what it means. Obviously if a person leaves Australia within 28 days of holding a substantive visa the 3 year exclusion does not apply.
But a person could be granted a bridging visa during that 28 period after the substantive visa expired in which case if the person left during the tenure of that bridging visa then similarly the 3 year exclusion does not apply.
But there is a 3rd situation. A person may be granted a second bridging visa during the 28 day period after the substantive visa expired. This opens the ability of a migration agent to carefully manage the departure of the client and at the same time give clients some extra time to sort out their affairs. The key to the strategy is to try and have a second bridging visa granted during that 28 day period and try and have the term of the second bridging visa as long as possible.
Finally if the person has only been unlawful for less than 28 days, it may be possible to apply for another visa (like a student visa) and re-establish one’s lawful status. It is all quite complex and extreme care needs to be taken to take the course which causes the least damage to the client.