Appeal and new application for refused Partner Visas

[Sarahjane9566]

I am writing this to see if anyone on here has experience of or has actually done this?

 

We applied for a partner visa which was subsequently refused because they didn’t agree we had been in a relationship for 12 months prior to applying. After consulting with a migration agent we have appealed that decision.

 

 

We were also advised to leave the country and submit another application as even Immigration accepted in their decision on the original application we have met all the other criteria and are a genuine couple. As I’ve been living in Aus for close to 3 years with my partner we obviously meet the 12 month criteria as well now.

 

 

The worry I had was if I leave and submit a new application will I have problems re entering because when I reach the border they will see I have an appeal and a new application in and I fear they will conclude the new application somehow invalidates the appeal so my bridging visa then becomes invalid and I’m refused entry.

 

 

Anybody on here ever tried this? Where they refused entry or is this actually an avenue allowed under immigration rules?

 

Thanks

 

Sarah

[Wei Shu]

Q: We applied for a partner visa which was subsequently refused because they didn’t agree we had been in a relationship for 12 months prior to applying. After consulting with a migration agent we have appealed that decision.

 

A: The 12 months de facto relationship can be waived, you obviously didn't consult with a migration agent who has knowledge with the requirement, the application most likely would not fail if you did, even after the application but before the refusal.

 

Q: We were also advised to leave the country and submit another application as even Immigration accepted in their decision on the original application we have met all the other criteria and are a genuine couple. As I’ve been living in Aus for close to 3 years with my partner we obviously meet the 12 month criteria as well now.

 

A: It certainly an option, but another $6,865 obviously. But if < 12 month was the only issue in your application, then it may not necessary in doing so, and remember there will be a cost for at least two overseas trips on top of the $6K+.

 

Q: The worry I had was if I leave and submit a new application will I have problems re entering because when I reach the border they will see I have an appeal and a new application in and I fear they will conclude the new application somehow invalidates the appeal so my bridging visa then becomes invalid and I’m refused entry.

 

A: The short answer is No, you no need to worry you will be denied re-entry just because an existing offshore application. The AAT application will not be invalidated due to a fresh application lodged offshore.

 

 

Edited September 29, 2016 by Wei Shu

[Sarahjane9566]

Thanks for your reply.

 

You're right I submitted the application myself as i thought we met all the criteria and had all the required information and documents.

 

I am still reasonably confident that we can be successful with our appeal however what our agent wanted to avoid was me needing to spend a year overseas awaiting a new application being approved if we lose the appeal when a new application will take about as long to process as the appeal will take to be heard.

 

Again thanks for you input and replying. It seems like a $9k gamble making a new application

 

Sarah

[George Lombard]

Hi Sarah,

 

The problem with the first application is that when you apply onshore - for a subclass 820 visa - you need to meet certain criteria at the time of application, and an important one is that you need to be either married or in a qualifying de facto relationship at the time of application. Your AAT review can't change the time of application criteria except under certain limited circumstances.

 

To that extent the second (offshore) application may or may not be justified, it depends on the precise circumstances of your situation.

 

Cheers,

 

George Lombard

[Sarahjane9566]

Hi George,

 

What are the certain limited circumstances?

 

Our case officer was quite specific that she didn't see overwhelming evidence of us being a couple for 12 months before applying and she seems to only be accepting the time we were together starting when I arrived in Sydney. I can and will produce evidence as to why I couldn't come here sooner.

 

I suppose it comes down to what constitutes maintaining a relationship when you're 12,000 miles apart.

 

Thanks

 

Sarah

[George Lombard]

Hi Sarah,

 

If your agent isn't aware of the limited circumstances get him/her to email me.

 

Cheers,

 

George Lombard

[Sarahjane9566]

Thank you George.

 

I am sure she is aware but I'm not which is why I asked.

 

I guess i am trying to judge if a trip overseas is worth the cost and hassle. We have further evidence of the 12 months to offer and they never asked for reasons why I didn't fly to Aus as soon as we decided on a relationship but there were justifiable reasons for that also. However i am aware there is no certainty with any appeal. If they gave back the cost of the 2nd application if you win an appeal we'd have done it by now but they don't you lose nearly $7k plus trip costs and the cost of a visa B to leave in the first place.

 

Thanks for the help though

 

Sarah

[Wei Shu]

It appears that your are a bit confused between evidence of genuine relationship and evidence of length of de facto or cohabitation relationship prior to the application.

 

 

 

Thank you George.

 

I am sure she is aware but I'm not which is why I asked.

 

I guess i am trying to judge if a trip overseas is worth the cost and hassle. We have further evidence of the 12 months to offer and they never asked for reasons why I didn't fly to Aus as soon as we decided on a relationship but there were justifiable reasons for that also. However i am aware there is no certainty with any appeal. If they gave back the cost of the 2nd application if you win an appeal we'd have done it by now but they don't you lose nearly $7k plus trip costs and the cost of a visa B to leave in the first place.

 

Thanks for the help though

 

Sarah

[Mark Northam]

Hi Sarah -

 

In addition to the good advice being provided by the other agents, I would suggest you look into registering your de facto relationship (assuming the partner visa was lodged as de facto partners) with the Australian state you live in. This can be accepted by DIBP or the AAT at the time of decision, and automatically satisfies the requirement that the de facto relationship existed for the 12 months prior to application. There is a separate assessment of whether a "genuine" de facto relationship existed at the time of application and the time of decision, but that's a separate assessment from the 12-month assessment. Registration of relationships is possible in Australian states other than SA and WA - see your state's births, deaths and marriages or equivalent office for details for your particular state.

 

Finally, it's important to be ready to argue both the 12-month requirement (unless satisfied by the registration of the de facto relationship) AND any genuine relationship arguments that may come up as the AAT often looks for both in these types of cases.

 

Hope this helps -

[Sarahjane9566]

Hi Sarah -

 

In addition to the good advice being provided by the other agents, I would suggest you look into registering your de facto relationship (assuming the partner visa was lodged as de facto partners) with the Australian state you live in. This can be accepted by DIBP or the AAT at the time of decision, and automatically satisfies the requirement that the de facto relationship existed for the 12 months prior to application. There is a separate assessment of whether a "genuine" de facto relationship existed at the time of application and the time of decision, but that's a separate assessment from the 12-month assessment. Registration of relationships is possible in Australian states other than SA and WA - see your state's births, deaths and marriages or equivalent office for details for your particular state.

 

Finally, it's important to be ready to argue both the 12-month requirement (unless satisfied by the registration of the de facto relationship) AND any genuine relationship arguments that may come up as the AAT often looks for both in these types of cases.

 

Hope this helps -

 

Our agent mentioned this at the time we appealed but then backed away from it after consideration. I was then told to appeal and use the time to have a new application considered but as previously stated i was concerned about not being allowed back in. At the time we lodged the appeal my medicare was stopped and hasn't been reinstated. Is this normal?

 

Thanks

 

Sarah

[Sarahjane9566]

Ok so I have been instructed by my partner to not waste any more time and just go and do whatever it takes to get a new application lodged. My plan involved combining a business trip to Bangkok with lodging a new application in the Aussie Embassy there however after some research I found out as I'm not a Thai resident they say my application is likely to be transferred to somewhere else. I can only guess this means either London or to Australia. They added they also wouldn't be able to issue me with a decision.

 

1) Should I just go to London and submit my application there and then come back and do I have to be in the same place that the application is lodged when they decide or does anywhere outside Australia suffice?

2) Will I need new medical and Police certificates as they already have both and since my UK police certificate was issued I've been in Aus for all but 3 months?

 

I hope someone can answer these questions, I've asked my agent but she seems to be away and I'd like to get on with this at least booking flights and an exit visa

 

Thanks

 

Sarah

[wrussell]

Ok so I have been instructed by my partner to not waste any more time and just go and do whatever it takes to get a new application lodged. My plan involved combining a business trip to Bangkok with lodging a new application in the Aussie Embassy there however after some research I found out as I'm not a Thai resident they say my application is likely to be transferred to somewhere else. I can only guess this means either London or to Australia. They added they also wouldn't be able to issue me with a decision.

 

1) Should I just go to London and submit my application there and then come back and do I have to be in the same place that the application is lodged when they decide or does anywhere outside Australia suffice?

2) Will I need new medical and Police certificates as they already have both and since my UK police certificate was issued I've been in Aus for all but 3 months?

 

I hope someone can answer these questions, I've asked my agent but she seems to be away and I'd like to get on with this at least booking flights and an exit visa

 

Thanks

 

Sarah

Read Mark's post and act accordingly.

[Sarahjane9566]

Thanks wrussell :wink: