Your last sUbstantive visa 300 “temp visa permitting the holder to travel to, enter and remain in Australia for 9 months from date of granr (300.511) Condition
8515-the holder of the visa must not marry or enter into a de facto relationship before entering Australia.
8519-the holder must enter into the marriage in relation to which the visa was granted within the visa period of the visa.(300.612)
8502-the holder of the visa must not enter Australia before the entry to Australia of a person specified in the visa. (300. 6 13)
Alice has complied with 2 conditions out of the stated 3 conditions. She breached 8519 condition because event
occurred which was out of her control.
?11 Apply for a waiver of condition 8519 based on PAM …..
Minister may waive a condition of a kind described in 41(2)(a), since the person was granted the visa subject to the condition, compelling and compaSSionate circumstances have developed over which the person had no control and that resulted in a major change to the person’s circumstances (check PAM)
Schedule 3 Additional criteria applicable to unlawful non-citizens … This schedule apply to you since you have become unlawful for more than a year since your last substantive visa was granted. You would be subject to criterion 3004. What this meant is that if you are applying for a partner visa in Australia and you do not hold any substantive visa at the moment because it has expired then schedule 3 still allow you to do so if you can demonstrate the reasonable grounds when you became unlawful and because of factors beyond your control. The Minister would look at your compelling reasons in order to make a decision on your case.
the fmancial aspects of the relationship may be evidenced by:
loan ~tsfor real estate, cars,
major household appliances or any other agreements relating 10 finances 01″ purchases (for example, properly pm::hased b) the parties as tenants in common) opcralioo ofjoint bank accounts -evidence that the accounts have been operated with reasonablc frequency and fOf” 8 reasonable period oftime would be given more weight than just opening such accounts pooling of 11nancial resources, especially in relation 10 major financial commitments legally binding financial obligations that one party owes to the other, for example, as guarantor for a loan, exisling power of attorney (these can be specified to cover various things, such as financial and medical) the basis ofsharing day to day household expenses, for example, whether each party is ‘responsible financially’ for their own ,’penses only and expenses are not pooled. 5
Factor 2 -The DJlture or Che bousebold
For regulation I. ISA’ 3 )(bl. the nature of the household may be evidenced by:
joint ownership of residential property
joint residential leases
joint rental receipts
joint utilities accounts (electricity, gas, telephone)
correspondence addressed to either or both parties at the same address
shared responsibility for care and support of children
shared responsibility for housework.
6 Factor 3 -Social aspects ofthe relationship
For regulation 1.1 5A()(c), social aspects may be evidenced by:
evidence that the relationship has been declared to other government bodies and commercial/public institutions or authorities and acceptance of these declarations by these bodies
statements of parents, tamily members, relatives, friends and other interested parties. Statements in the form ofstatutory declarations should be encouraged on the basis that, as a legal document, they carry more weight. (Note: The Department provides 8 specific form for this purpose -see form 888.)
joint membership of organisations or groups, documentary evidence ofjoint participation in sporting, cultural, social or other activities joint travel and plans for the future whether the parties present themselves as a couple socially.
Officers should, however, take into account to what extent, ifany, the laws andlor traditions of the applicant’s horne countty may discourage the parties from openly admitting the existence of the relationship.
7 Factor 4 -The nature of the commitment
7.1 Mutuality
For regulation I 15A<J)(d), fficers should regard the ‘nalUre-oftbe partners commitment as requiring an assessment ofthemuiliality of their commitment to each other, having regard to (bul nollimited to) the four factors listed, namely:
the duration ofthe relationship
the length of time the parties have lived together
the degree of companionship and emotional support that the parties draw from each other
whether the parties see the relationship as for lite long term.
The nature (mutual ity) of the relationship may be assessed having regard to, for example:
the partners’ knowledge of each other’s personal circumstances (this could include background an
d family situation and could be established al interview) andlor evidence of intentions that the relationship be long term (for example, by the extent to which the partners have combined their affairs, and the extent to which they have provided for each other, such as being beneficiary to each other’s will andlor superannuation).
If parties who are (or until recently. were) living separately claim that their separation is (or was) not permanent, officers need to consider their reasons for the (temporary) separation -see PAMJ: Act -Act-defined tml1S -~5F -Spo~.
7.2 The length of the relationship
For regulation 1.15A(3)(dlli), the duration of the relationship is simply one factor in assessing the mutuality of the parties’ commitment to each other. That mutuality of commitment is, in turn, simply one factor in assessing whether the relationship overall meets s5F(2) requirements to be in a ;,J!illJ)~ r~l~tinn~lJ.i.rt.
There is no specific length oftime prescribed in thisfactor. Although the length of time the parties have been married should be taken into account when assessing the mutuality of the relationship, all other factors under 1.15A(3)(d) must also be satisfied.
8 Spouse relationship policy & procedures
8.1 Thorough assessment required
The existence (or otherwise) of a ‘r~’h~ rJ,laJHon<;1}in can have a significant impact on a person’s eligibility for a visa, particularly a permanent visa. Officers are expected to examine applications carefully ifvisa eligibility:
derives from the existence of a ‘!j1llll,C rdalltlll,hlp or
depends on there being no ‘i1l”1.,,, rdatj(lll iJin.
Othtr relevant Partner category ,iss provisions
Related Schedule 2 regulatory provisions
For the Partner category visas (visas 300, 3091100 and 820/801 ), there are 3 specific Schedule 2 visa provisions or policy oonsidemion’ (summarised below) to which Oftlcers assessing cenain ‘p’(l).b… r J.;ttl<ln. hil” are expected to have particular regard.
(e) Decision makers must decide the weigJIt to be given to each factor or characteristic. However, they are not, limited 10 the four factors at regulation 1.ISA(3), but can consider any additional infonnation that is reasonable and practicable on which a decision can be based.
820/801 eligibility for Alice You are eligible for this subclasses because you are the spouse of Alex and this has the definition in s.5F which directly relating to who you are. You two have married to each other that is valid under the marriage Act 1961 recognised by the Australian law, you have mutual commitment to a shared life as husband and wife. It is a genuine relationship and you live together (R1.15A)
(820.211)(2) -you satisfy this subclause if you are the spouse of Alex who is assumingly over 18yo at the moment and is an Australian permanent resident In your situation, it is evidenced that you have been unlawful for more than a year now. However you have indicated to me that you and Alex got married last month and that you two had lived together before that time for more than a year. Therefore you may be able to still apply for the partner visa despite the fact that you have been unlawful a quite some time. SpeCifically in schedule 2 subclause 820.211(2)(d)(ii) stated that if you are not the holder of a substantive visa then you would need to meet additional criteria in schedule 3 for unlawful non-citizen. Schedule 3 will be discuss in more detail in later Since it is indicative that you two have lived together for more than 1 year before your marriage. You must provide sponsorship form indicating that Alex is your sponsor and 2 statutory declarations, declared 6 weeks prior to your application for partner visa to testify the genuineness of the relationship
3 About reg. 1.1 5A(2)
3.1 Reg. 1.15A(2) & s 5F(2)
Under regulation 1.15A( I}, regulation I. I 5A(2} applies to visa 309/100 and visa 820/80 I applications. Decision makers must have regard to all
circumstances of the relationship, but they also must decide the weight to be given to these circumstances (and the listed factors).
Regulation I.ISA(2) provisions relate to assessing if, for sSF of the Act:
the relationship is ‘genuine’ and/or ‘continuing’
the persons have a ‘mutual commitment to a shared life’ and
the parties are Jiving together (or at least not living apart permanently).
Note: Despite the wording ofs5F(3) of the ACL because the validity of the marriage for migration law purposes is an issue of/act, officers do not have 10 consider s5F(2)(a} against regulation 1.ISAm. For policy and procedure lor sSF(2)(a), see PAM): Act -Act-defined terms -s5F -Sppuse:.
Unlawful non-citizen s.14-unlawful
valid application
s.46
After the child is born (1 more month)
s.78-children born in Australia: ” if a child born in Aust is a non-citizen and at the time of birth one of the child’s
parents holds a visa and the other parent does not hold a visa, the child is taken to have been granted, at the time of
the birth, a visa of same kind and class and same terms and conditions as that visa”
It is possible if Alice and Alex want to wait for another month before applying.
Look at citizenship by birth???
(b) she suffered at the hands of Robert and obtained an
a Magistrate at the Melbourne istrates’ Court? yet. Violence exist during marriage only. Therefore she still would not be able to apply for
-look at definition of “physical violence”, “interim intervention order”
PAM 3, Migration Regulations, division 1.5 clause 3 Purpose of the family violence provisions