Michael Arch

Your message provides a good example of why it is advisable to consult with a registered migration agent or a lawyer who is a RMA: in fact, if the lawyer engaged by your partner's employer was not a RMA, he could not lawfully provide "immigration assistance" - including an application for approval of the employer as a Standard Business Sponsor - see section 276 of the Migration Act. If the lawyer does not regularly practice in this area, he/she may not be aware of this prohibition in the Act. In fact it is an offence for a person who is not a RMA to give immigration assistance, see section 280 of the Act. I do suggest that it would be advisable for your partner to bring these matters to the employers attention and suggest that it would be advisable for the employer to engage the services of a lawyer who is a RMA or a "non-lawyer" who is a RMA. In terms of the new or "fresh" application for approval of the employer as an SBS: yes, in theory the new application could be granted if it does meet the criteria for approval. Processing times for the assessment of the SBS application are variable. If the SBS is approved and the employer then nominates your partner for an occupation within the business, then in theory the SBS approval and the nomination could support the grant of a 457 visa to your partner. Your partner could apply for the 457 visa while h in Australia and holding only a bridging visa provided that he has not suffered the refusal of a previous visa application.

Unzippy: I respectfully disagree with the advice provided to you below by "snifter" to the effect that "You'll need proof of her (your wife''s) right to reside in the UK for her to sponsor you" (for a Subclass 309 Partner (Provisional) visa). Again, respectfully, your wife's status in the UK is irrelevant to whether she can sponsor you for the Australian partner visa. Gaining British citizenship will not give your wife any greater right or ability to sponsor you than she presently has. Rather, what matters is whether she is an Australian citizen or permanent resident - which she apparently is. Therefore: you can prepare your Partner visa application with the details from your wife's Australian passport, and likewise when she completes the sponsorship element of the application, she can and should use her Australian passport details, In terms of "time scales" I assume you are asking how long it takes the Department to process and determine a Subclass 309 partner visa application. My experience is that it takes approximately 12 - 18 months so there is a possibility that you may not have a decision on your application in a year's time. To respond to your question: "How long is the visa valid for once you have it"? the answer is that the Subclass 309 visa remains valid until it is replaced by the Subclass 100 Partner (Migrant) visa, which generally occurs 2 years after the grant of the Subclass 309 visa, unless you can establish that you are in a "long term partner relationship" with your wife, which is defined under regulation 1.03 as not less than 3 years. Good luck with your application!

A citizenship application must be made for the child - he does not "automatically" acquire Australian citizenship due to being the son of an Australian citizen for the reason that he was born outside Australia. The situation would be different if your son had been born in Australia, as he would then be an Australian citizen by birth (see section 12 of the Australian Citizenship Act). Your son would be able to come with you lawfully on a British passport but he will need to have an eVisa - it is very unlikely that you could get a citizenship application reviewed and granted and also get an application for an Australian passport approved in the 4 week period before you are planning to come to Australia.

The standard form for statutory declarations in Australia can be found at this link: https://www.ag.gov.au/Publications/Documents/CommonwealthStatutorydeclarationform.PDF.

Your son is eligible to become an Australian citizen. Under the Australian Citizenship Act (section 16) a person is eligible to become an Australian citizen if they are born outside of Australia after 26 January 1949 and one of the parents was an Australian citizen at the time of the person's birth. (Depending upon how your partner acquired Australian citizenship, it may be necessary to show in the application that your partner has been lawfully present in Australia for a period of at least 2 years before the citizenship application is made for your son. Your son can travel to Australia on his British passport under a Subclass 651 eVisitor visa, which you will need to apply for. The eVisa will allow your son to remain lawfully in Australia for a period of 3 months. It would therefore be advisable in my opinion for you to lodge the citizenship application for your son as soon as possible so hopefully it will be processed and your son will be granted Australian citizenship during the 3 month period of his visa.

Rozelle the situation you present is obviously complex, and I would be hesitant in any event to offer "case-specific" advice through an on-line forum. I would make the following observations about your circumstances: 1. Under the Schedule 1 requirements that presently apply to student visas (Subclass 500) which are found at Item 1222, in order to be able to apply for a student visa from "onshore" in Australia you must be the holder of a substantive temporary visa (in other words, not a bridging visa). Otherwise the student visa application must be made from offshore. 2. A person who is does not hold some form of substantive visa may not be granted a student visa unless (generally) the last visa that was held was a student visa and the further application for a new student visa is made within 28 days of the date that the previous student visa came into force. 3. Under section 46(1)(d) of the Migration Act, a visa application is not valid unless any visa application charges have been paid. My opinion is that the way that the law would almost certainly be read is that the Department's finding that your visa application was invalid would most likely be upheld. 4. In terms of the possibility of your being subject to a 3 year exclusion period: Under Public Interest Criterion 4014, you could potentially be subject to this exclusion period if you leave Australia with the status of an "unlawful noncitizen" or as the holder of a Bridging Visa C, D or E. 5. There is a possible, theoretical "fix" in the sense that the exclusion period might be "waived" in respect of a future offshore visa application if you can show either that there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible NZ citizen. 6. Possibility for another fix? If you remain in Australia as an unlawful noncitizen, but form a relationship with an Australian citizen, permanent resident or eligible NZ citizen and you can show that there are compelling circumstances (e.g. that you and your Australian partner or spouse have a child who is an Australian citizen) then there is a possibility that you might be able to get a partner visa which would give oyu a pathway to permanent residency and ultimate citizenship.

Hello Jim, As a general principle I would suggest that it would be advantageous to consider arranging a consultation with a migration lawyer/registered migration agent so that you can get accurate and reliable advice concerning the particulars of your own situation. To briefly answer your questions: 1. In assessing whether you and Lucy have a genuine de facto relationship that would support the grant of a partner visa, the Department will assess the circumstances "holistically" and having regard to the factors listed in regulation 1.09A: the financial and social aspects of the relationship, the nature of the household and the nature of the commitment between the applicant and the sponsor. 2. The Migration Regulations do not require that you have lived together for a period of 12 months prior to lodging an application for a visa on the basis of a de facto relationship. Rather, regulation 2.03A requires that the parties must have been in the relationship for the 12 months immediately prior to the application. This 12 month time period does not apply in circumstances where there are "compelling and compassionate circumstances". Unfortunately, under current Department policy (the "Procedures Advice Manual") a pregnancy is generally not considered by itself to be a compelling and compassionate circumstance (unless there are "exceptional or unique circumstances" relating to the pregnancy). One way of getting around having to prove that the de facto relationship has been in existence for 12 months is to register your relationship under the relevant law of a State or Territory - if you do register your relationship, the 12 month requirement does not apply. 3. In terms of having family members' witness each other's Statutory Declarations (Form 888): my view is that it would be a better practice to have an unrelated, independent 3rd party witness the stat decs.

To amplify a bit on points previously made by WRussell: 1. The processing times for a Prospective Marriage visa are variable from case-to-case but my own experience is that it will be longer than "a few months"; of course a carefully prepared and supported visa application can facilitate the Department's review, reduce the need for the Department to issue requests for information and can thus "speed up" the process. 2. Yes it can definitely be helpful to register a de facto relationship under the law of an Australian State or Territory. There is a requirement under regulation 2.03A(b) that, in the absence of "compelling and compassionate circumstances", a visa may not be granted on the basis of a de facto relationship (including a partner visa) unless the relationship has been in existence for at least the 12 month period immediately before the application. There is no legislative requirement that you must have lived together for the 12 month period prior to lodging the visa application, the requirement is that the de facto relationship must have been in existence. However, under section 5CB of the Migration Act de facto partners cannot have lived separately and apart on a permanent basis. The advantage to registering a relationship is that if you do this, then the requirement that the relationship must have been in existence for 12 months does not apply. 3. It is always a good idea to seek sound advice about which specific visa pathway is most appropriate to your particular circumstances, as others on this thread have indicated.

The current Temporary Skilled Migration Income Threshold ("TSMIT") is still $53,900. This threshold has been established under regulation 2.72(10)(cc) and Legislative instrument IMMI 13/028.

The answer to your question: "How are our careers looked at" depends on what type of migration pathway you are considering. Note that if your WHV contains a Condition 8503 you most likely won't be able to bee granted a further visa while onshore in Australia, you'll need to go back offshore and re-apply for another type of visa. Generally speaking if you are seeking independent skilled migration you must have an occupation that is on the Skilled Occupation List and you must have your skills assessed by a "relevant skills assessment authority". Regards, Michael Arch Migration Lawyer/Registered Migration Agent 1386469

The answer to your question is that there are possible pathways to permanent residency based on your occupation as physiotherapist, in particular the independent and nominated pathways (189 and 190 visas) under the General Skilled Migration Programme.

Yes it is correct. There is a residency requirement under the Australian Citizenship Act. You must be present lawfully in Australia for 4 years before applying for citizenship. So time spent in Australia lawfully on a tourist visa definitely "counts" towards meeting the residency requirement. Note however that one must be a permanent resident for the 12 month period before applying for citizenship. Further questions about residency requirements? concordialaw@optusnet.com.au Michael Arch Migration Lawyer and Registered Migration Agent