Mark Northam

Hi Sim1 - If you're planning on your mother applying onshore, this can be tricky as the visas that would be processed in any reasonable time are the contributory parent visas (subclass 143 and 173) and the contributory aged parent visa (subclass 864) which has an age limit - hence the reason for Alan's question above I expect - note that the 143 and 173 applications do not provide a bridging visa, even if you apply while the applicant is onshore. The 864 does provide a bridging visa to allow the applicant to remain onshore until the application is decided however. There is also the 804 onshore aged parent application that provides a bridging visa, but processing times for this visa are estimated by DIBP to be 30 years, so generally not practical unless the applicant wants to spend the rest of their lives on a bridging visa (some in fact don't mind this!). Hope this helps - Best, Mark Northam

Hi Greg - Suggest you apply online using ImmiAccount as it's far easier than paper applications, and avoids the need to get copies certified, etc. Then after lodgement if you have additional evidence such as additional witness statements, travel evidence, etc you can simply upload that to your lodged application. If you must use a paper application, it's generally best if you can find out which of the several onshore partner visa processing centres is processing your application so you can send the documents to the correct location and avoid delays - you might contact DIBP at 131 881 (be prepared for an hour on hold) to see if they can tell you where your application is/will be processed and get you an address. Hope this helps - Best, Mark Northam

Also note that the requirement that you be "settled" in Australia refers to being lawfully in Australia for 2 years (according to current DIBP policy) on any sort of visa which can include time on temporary visas such as student visas, 417, 457, etc. You must however be a PR at the time you lodge the parent visa. Note the very long waiting times (20+ years) on the traditional parent visa subclasses, however this can be overcome if you are willing to pay the high second visa application fee for the contributory and contributory aged parent visas.

My biggest concern about these proposed changes is that if an applicant is named in a sponsorship application (for a partner visa) and the applicant is offshore and planning on coming to Australia on a visitor visa to lodge an onshore partner visa, what would that sponsorship application do to the applicant's chances of being granted a visitor visa (for tourism purposes)? If an applicant was already onshore on a 3-month visitor visa stay and there is a sponsorship application requirement introduced, it could potentially delay the application by the applicant past the 3-month mark - if the applicant then went offshore and re-entered Australia if their visitor visa was a multiple-entry visa, could designation on a partner sponsor application then cause the applicant not to be allowed to re-enter Australia due to an intention to lodge a permanent visa onshore when allowed to do so? The added delay and cost to partner visa applicants is also an issue - this visa has seen a HUGE increase in visa application fees over the last few years, and at some point the application fee will be seen as punitive. And in terms of character, I can understand the concerns re: sponsors with criminal records sponsoring young children dependents of their proposed partners, but to what extent will character issues with sponsors result in their inability to sponsor their own partner? Given the introduction of highly sensitive character-related provisions, such as where a visa can be cancelled if the applicant is deemed a threat to "the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals" (Section 116(1)(e) of the Migration Act 1958 (Cth) dealing with cancellation powers). And what of family violence claims against sponsors on previous application(s) that are upheld yet the sponsor is given no opportunity to contest the claims or provide evidence the claims are false? How would it be fair or reasonable to penalise a sponsor based on such a one-sided decision making process with no natural justice provided to the sponsor to comment on adverse information given to the Department? Lots of questions, few answers so far, lots to look forward to this year! Best, Mark Northam

Hi Sswatek - Assuming this is a de facto partner visa application, the date of the start of the de facto relationship (ie, the date the relationship became de facto) can be critical, especially if it is within 12 months of the date of application. 1023 would be the right form to correct information on the application that is incorrect, but suggest you get professional advice on the ramifications of declaring a new relationship start date, especially if the new start date is less than 12 months before the date of application. This particular question is often misunderstood by applicants, and frankly is not very well worded in the application form which is often the root cause of the misunderstanding. The key issues are that you do not endanger your eligibility re de facto relationship, that you do not create conflicting information in your application which can lead to further issues, and that you can demonstrate with evidence that your relationship was at a de facto level from the time you claim it was. Hope this helps - Best, Mark Northam

Hi Bella - You would not have any waiting period imposed on you prior to sponsoring your new partner, as the previous visa you were sponsored under was not a partner (820/801 or 309/100) visa but was an employer sponsored visa. You're correct, the applicant must be onshore at the time of lodgment for the subclass 820/801 partner visa application. He might come to Australia on a visitor visa of some sort, then lodge the partner visa once here on a visitor visa. In this scenario he may want to make a final decision on lodging the partner visa after he arrives, so that he arrives with the intention of (only) visiting Australia for tourism purposes if asked. Once he overstays the minimum stay period of the visa (for ETA visas it's often 3 months), assuming you lodged an onshore partner visa during the stay period of the visitor visa (important!), the Bridging Visa A he receives from applying for the partner visa will activate as soon as he overstays the minimum stay period. Once the BVA has activated, he has full work and study rights in Australia. Hope this helps - Best, Mark Northam

Hi Sasidhar - Thanks for the note. By "cousin brother" I assume you mean a first cousin who is a male, and shares a pair of grandparents with you. If so, that would appear to be an allowable family relationship to sponsor as first cousins are allowed to sponsor for the subclass 489 visa. There is always a chance for any visa to be refused - there simply is no such thing as a 100% guaranteed visa that I know of. With points tested visas, the details of the supporting documentation, especially for work experience claimed for points, is absolutely critical. You can have the strongest evidence, but if DIBP decides to verify it and whoever answers the phone at your current or ex-employer says the wrong thing, you can have problems. If you want an assessment of the vulnerable areas of your application, that's something an immigration lawyer or migration agent can help you with, but even with a highly experienced professional, there's no way to predict with any specific accuracy the chances of success - we can certainly provide a rough estimate, but there are always variables that are out anyone's control. Add to that vague words like "genuine", "compelling" etc used in the law that can be anything to anyone and it creates a fluid situation where things simply aren't predictable with any great amount of accuracy. The best you can do is to take all steps ahead of time to maximise the chances of success and reduce the risk as much as possible. Hope this helps - Best, Mark Northam

Hi Marsuz - Can be from a few days to 2+ months depending on a number of factors including country of citizenship of the applicant (higher risk countries often take longer to process), any immigration history that the applicant may have with DIBP (Australia) or otherwise, whether the person has any potential character issues, etc. Also, a 12-month visitor visa (visitor stream) can be a rather challenging visa to get unless the applicant can show they have the resources to take, essentially, a 12-month vacation to Australia, and can show sufficient ties to their home country that would provide a strong incentive for them to return after 12 months in Australia. Remember that for the visitor stream, you have to show that you are coming to Australia for tourist/visitor related purposes. Hope this helps - Best, Mark Northam

Hi Jackie321 - Great question. To include your partner on your application, you would need to show that you are in a de facto or married partner relationship with him. People who are engaged normally would not be able to use that relationship to include a partner on a skilled visa application (as a migrating partner) unless they could prove that the relationship was at a de facto level. Suggest you carefully review the requirements for de facto relationships and make sure you have the evidence to support it - with 10 years living together (de facto requires 12 months) that part certainly is met, however look at the four required types of relationship evidence - financial, social, commitment, household - and consider what evidence you'll be using to show DIBP your relationship has been at a de facto level for at least the 12 months prior to the date of application. Hope this helps - Best, Mark Northam

Hi CaddyUK1234 - In your case the skills assessment is the issue. I'd look at the 457 visa option first through a sponsoring employer, where if you can show 3 years of experience in this occupation, you can pass the ANZSCO minimum skilled requirements via work experience to get the 457 visa. Then after 2 years working for the employer on a 457 visa, the employer (at their option) can sponsor you for a 186 or 187 employer sponsored PR visa. This pathway avoids a skills assessment entirely unless DIBP requests it as part of the application process, however years of proven, documented experience can often work per the ANZSCO work experience option. More on this on http://www.anzscosearch.com/search/ which is a handy site for occupation-specific info. Hope this helps - Best, Mark Northam

I agree with George - coming back in on a visitor visa could be an option depending on whether you can get approved for a visitor visa and assuming that visitor visa does not have condition 8503 (no further stay). The risk is getting stuck outside Australia if you cannot get a visitor visa. Hope this helps, and Merry Christmas!

Hi Chid Pom - You can lodge an onshore partner visa application, however as you are holding a bridging visa only you will be subject to the Schedule 3 criteria which requires "compelling reasons" to be shown why you cannot go offshore and lodge an offshore partner visa application. The bar for this is rather high, so you'll want to consider your circumstances carefully and perhaps get some professional assistance in determining whether whatever circumstances you plan to claim have a reasonable chance of being approved. The step-daughter relationship may have a chance, but may depend on proving the negative impact on her if you left and lodged an offshore partner visa and had to wait offshore 1-2 years for that to be approved. Hope this helps - Best, Mark Northam

Hi - Could be from the same employer, just better documented and explained, however depends on the circumstances whether the nomination can be modified to be acceptable to DIBP or not.

Hi Sentia450 - There may be hope at the AAT for a reversal of the refusal - this sounds like the nomiantion was refused, not the actual visa application. Generally there are 2 ways to proceed in this type of case - either put in a new nomination with additional/better evidence, or appeal the nomination refusal to the AAT. Whether the visa application part of the 187 application have been lodged can also make a difference - if the visa application has not yet been lodged, it's often easier to put in a new nomination assuming there are no visa expiration issues to deal with. However if the visa application have already been lodged, it may make sense to take the visa refusal (which happens unless the application is withdrawn (no refund) since there is no valid nomination for the current application) to the AAT and petition the AAT to hear the cases of the nomination and refusal together. Suggest you consider getting professional advice from an immigration lawyer or migration agent who can thoroughly assess your case, the reasons for refusal, the lodged evidence vs new evidence available, and give your friend professional informed advice as to her options and the best way to proceed. Hope this helps - Best, Mark Northam

Hi Robdec23 - When you make a valid application for the AAT for your visa refusal, once the AAT receives the application and processes it your bridging visa (BV) will automatically be extended with an indefinite stay period (no expiration date) with all the conditions you currently have intact - you do not have to make a new BV application. Your BV will eventually be set to expire 28 days after the AAT final decision. Best, Mark Northam

Hi Robdec23 - If you make a valid AAT review application for your refused RSMS visa, your existing bridging visa C will automatically be extended to cover you through the AAT review process for your refused visa plus 28 days. You may want to advise the AAT that you wish to have the refused nomination and refused visa application heard together if that is appropriate given the circumstances of your case. Best, Mark Northam

Hi Cocohoney - Thanks for the note. Overseas qualifications are acceptable to the extent they are assessed as equivalent to Australian qualifications. So I would think he would at least get 15 points for the Bachelor degree I assume he has that underpins his medical degree. Generally medical degrees such as an MD or MBBS degree are AQF level 7 or 9 and are not AQF level 10 as doctoral (PhD) degrees including substantial research are, so unless he has a PhD, it's likely he could claim 15 points only for the qualifications. No need for an English test, but no points either if no test is taken - is always possible to take an English test (even if exempt) and use the points. No reason to book medicals before an EOI is submitted as they expire in a year and it could be some time before you receive an invitation (if at all) - better to book medicals either just before or just after lodging your visa application. Hope this helps - Best, Mark Northam

Hi - I don't have enough information to give you specific advice. If you are offshore a refusal may not be all that different than a withdrawal re: your circumstances and future applications, however if you are onshore that's a different story. Happy to assist you at a consultation - you can get more information on this at our website (see signature). Best, Mark

Hi - Part of the requirement for the nomination if the person is applying under the TRT stream for the 186 visa is that the proposed visa applicant has held one or more 457 visas for a total of 2 years during the 3 years prior to the date the nomination was lodged. This means the nomination cannot be lodged prior to the completion of the 2 year period for the TRT stream, or the nomination will be refused based on not meeting the 2 year requirement. Wish things were different, but this is a classic example of how and why migration law is such a complex and detailed part of Australian law, and utterly unforgiving in many ways like this one - there's no "unless the Minister is satisfied xxxxx" or something like that - it's a black & white requirement that is either met or not. However this is something that your migration agent owed a duty to inform you of - it's not your job, after all, to go plowing through all the regulations and check everything yourself, although in the eyes of DIBP they will always put ultimate responsibility on the applicant(s) even if the agent provided incorrect advice. Best, Mark Northam

Hi Emilyaizai - Assuming your migration agent had a copy of your 457 visa or access to the information that showed the grant date, that's a huge mistake and one that the agent should compensate you for if you are out of pocket any money. While we're all human beings and all make mistakes, in the end the one who makes the mistake is the one who should pay. If you have not been the holder of one or more 457 visas for at least 2 years during the 3 years prior to application, the 186 nomination will be refused. Suggest you have your migration agent check into withdrawing the defective nomination and lodging a new one, this time after the 2 years has been met. If you're fortunate, DIBP will link the 186 visa application to the new nomination and proceed - the ability to re-link a 186 visa application to a new nomination is one that has been the subject of a lot of discussion and some controversy over the last couple of years - suggest you consider this route, as the only alternative is withdrawing the nomination AND visa application (and losing your visa application fees) and re-lodging a new set. Hope this helps - Best, Mark Northam

Hi Jay90 - As your relationship broke down 18 months ago and neither of you informed DIBP as you were obligated to do, you may have created potential issues for yourself re: claiming you were in a relationship with your new fiance at the same time you had a partner visa application pending with your previous partner. If you are onshore and have held a bridging visa for the last 18 months based on a partner relationship that no longer existed, that could make matters worse. Suggest you get professional assistance via a consultation with an immigration lawyer or migration agent to assess what your options are now and determine best way(s) to proceed. Best, Mark Northam

Hi Lorraine - Most people who apply for the subclass 103 visa do so from offshore, as it does not result in a bridging visa even if you apply for this visa while onshore in Australia. With a 30 year wait currently estimated by DIBP, the main benefit of this visa application in practical terms may be to enable the applicant to qualify for longer visitor visas. The only onshore parent visas that would provide a bridging visa to allow the applicant to remain onshore during the processing period would be the onshore Aged Parent (subclass 804) or the onshore contributory aged parent temporary/permanent (884/864 respectively) visas, all of which have age limits. Hope this helps - Best, Mark Northam

Hi BradBram - Great question. As your 6-month work period would end prior to the expiration of your working holiday visa (WHV), you would need to lodge a request to waive the 6-month WHV work limitation after you lodge the partner visa application. These are usually approved if you can establish that your employer needs you to continue work for important reasons (you should include a letter from your employer stating this and providing details with the extension request). The extension request is made using Form 1445 which can be downloaded from the DIBP website, and should be lodged at least 2 weeks before the 6-month time limit runs out. You will be granted a bridging visa A upon lodging your partner visa, however the bridging visa will not activate until your WHV expires, which is why you'll need to waiver to continue working for the period AFTER the 6 month limit runs out but BEFORE the WHV expires and the bridging visa activates. Hope this helps - Best, Mark Northam

Hi AndrewMcD - For SBS sponsors that are not start-ups, the requirement is to show "recent expenditure" for training Australian citizens or permanent residents of either 1% of gross wages on qualified training (Benchmark B), or 2% of gross wages on payment to a qualified training organisation (Benchmark A). They may also ask for training evidence for each of the completed 12-month periods of your existing SBS sponsorship. However the key in all of this is "qualified" - no way to advise whether they will meet the training obligation without a careful review of what training was undertaken, including goals/objectives/results of training, seeing who was trained, etc. There are many policy issues in this area and there's really no substitute for a careful review of the proposed training expenditures to identify any potential issues. There is some flexibility in DIBP policy re: spending more in one year for training while spending less in another year, but those are evaluated on a case-by-case basis and if there is any deficiency in training obligations, it should be explained and accompanied by relevant evidence of why the deficiency occurred. Hope this helps - Best, Mark Northam

Hi BelindaD - Sorry to hear of the issues - I don't have enough information about your case to give you specific advice, however I'm not sure about any "requirement" that a person include all of his/her dependents in a particular visa application - are you referring to something that the AAT Tribunal is insisting on, or DIBP? Best, Mark Northam