Do i need to withdraw, before i can re-apply?

[woodsey85]

Hi Agents,

 

Was wondering if i would need to withdraw an existing visa before i can re-apply for a new visa.

 

Currently i am in the queue for the last remaining relative visa, queued in 2013. Due to the estimated waiting times of 40 years i am looking at some alternatives to get my residence faster.

 

As it stands i am on a bridging visa. I am looking at the option to apply for a partner visa.

 

Will I have to withdraw my current visa and then apply for the partner visa or can i apply while my current bridging visa is still active?

 

 

Many Thanks

[Mark Northam]

Hi Woodsey85 -

 

No particular requirement that you withdraw your remaining relative visa prior to lodging another visa, however if you are lodging a PR visa, DIBP may require you to withdraw the remaining relative visa just prior to granting you the new PR visa.

[George Lombard]

Hi Woodsey,

 

You will find that there are issues about converting to any new visa given that if in Australia you no longer have a substantive visa. It's not a question of withdrawing the application but meeting the requirements for a new application for an onshore partner visa. I would suggest getting professional advice on this since there have been many Tribunal decisions on this issue and although after the Waensila decision it's possible to look at a broad range of circumstances, the Department will most likely say that you could just apply from overseas unless you've got very strong reasons against that.

 

Cheers,

 

George Lombard

[Mark Northam]

Hi Woodsey185 -

 

My apologies - for some reason when I saw your message the last 2 lines re: looking at a partner visa did not display. Partner visas while holding a bridging visa, as George pointed out, can be very challenging. The Schedule 3 criteria can be very difficult to overcome especially if there are no children, health issues, or issues beyond your control involved. The bar is quite high for this particular waiver - about half of my work is representing clients who have received Schedule 3 s57 letters, and in some cases coming up with criteria that can get over the line for Sched 3 can be impossible. A big part of this is the "opinion" of the case officer, which can be hard to predict. In my experience many clients typically have a better chance at a Schedule 3 waiver at the AAT Tribunal, but this again can depend on convincing the AAT Member that there are sufficiently compelling reasons that exist for waiving the Schedule 3 criteria. It can be a long and expensive road, and if it all possible you may want to consider an offshore partner visa application to avoid the Schedule 3 process. In the end, will all depend on your particular circumstances - as George said, getting professional help and advice re: likelihood of success in these types of matters where there is no black & white requirement to meet, only a legally meaningless word such as "compelling" can be important in making an informed decision regarding how to proceed.

 

Best,

 

Mark Northam