Visa Refusal - Do we have any options?

[authentikate]

Hi,

 My fiance and I are at a loss right now of what steps to take next. I'm hoping that someone here has some kind of insight into what our next move can and should be. For reference, I am a Canadian citizen and my partner is Romanian. He is the primary applicant and is sponsored through his work. I came to Australia almost 4 years ago on a working holiday visa, and my partner came on I believe, a 407 visa or something similar. Some kind of internship, 1 year visa.

Yesterday, we were refused an RSMS 187 visa based on the fact that he had not successfully passed the IELTS test until 2 days after the migration agent (that was supplied from his work) had put in the application. While she states that she had no choice but to put in the application at that time due to time constraints, we still had about another 3 weeks remaining on our previous 12 month visa that we were on at the time. She could have waited the 2 days just in case, but told us at the time that it would be fine even if he passed the test after the application was lodged. Obviously, this was not the case.

We have been attempting to apply for sponsored visas through my partner's employer for going on 3 years now. Every time we have tried, something has been done incorrectly by various registered migration agents that has further complicated the matter. First, it was a 457 visa submitted under the wrong job heading. We were denied the nomination for that one. Then, upon applying for the 187, we were told to plan our wedding immediately to ensure that they could not say we were not together lawfully. We planned our overseas wedding with all of our family, only to find out months before it that as we were on a Bridging C visa, we are not eligible for a Bridging B visa. While we were granted priority processing in the hopes of making it to our wedding, we still had to cancel everything and lost all money we had put into it. This priority processing led to an accepted nomination, but a sped up refusal.

We know have 35(?) days to leave the country and have no idea what to do. The migration agent and his work has suggested that we "go, hang out somewhere for about 6 months"  out of country while they reapply for the 187 for another approx. $10,000. We would then come back and try again. It would take another, at this point, 22-25 months to go that route and this is after 6 months of either not working in my partner's country (language barrier) or paying to bring him as my fiance to Canada, where he may not be able to work for up to a year, and then trying to come back. We could just give up and go to Canada, but our life is here after almost 5 years in Australia. This is home.

We don't know what to do.

We have been told that appealing through the AAT would just be prolonging the inevitable refusal, so it's not worth the attempt. We don't want to spend another 2 years or so just waiting to be refused again.

I have also been told through my work that I could apply for the 187 as an office manager, but from what I have read, lately a majority of those have been refused. And it is again, another $10,000 and 22-25 months of waiting and hoping that we are not refused again.

Do we have any options? Any insight at all would be appreciated.

 

[ali]

Is it worth running by a migration agent who offers a free consult to see if there are any pathways open to you?  It may be worth looking at the independent skilled visa options and if either of you qualify for those.

[VERYSTORMY]

There are good agents out there and we do have a number that are who are members who regularly post on the forum. Do a search on here for wrussel 

[authentikate]

Thank you both.

I think we are both just really hesitant at this point when it comes to migration agents. While we know that there are of course good ones out there, our experiences so far have not been good. I tried to search for one yesterday but every time I would find one, I hesitated to call in case they were as unhelpful as the ones we have had so far. But at this point, the situation is such a mess that we can't get ourselves out of it alone.

Thanks for the suggestion about wrussel though, verystormy. I will see if I can find him in the forums.

[ali]

3 hours ago, authentikate said:

Thank you both.

I think we are both just really hesitant at this point when it comes to migration agents. While we know that there are of course good ones out there, our experiences so far have not been good. I tried to search for one yesterday but every time I would find one, I hesitated to call in case they were as unhelpful as the ones we have had so far. But at this point, the situation is such a mess that we can't get ourselves out of it alone.

Thanks for the suggestion about wrussel though, verystormy. I will see if I can find him in the forums.

any of the agents who post regularly on the forum have a good reputation @wrussell @Raul Senise @Alan Collett @Richard Gregan

[wrussell]

Here is the applicable regulation:

187.222 At the time of application, the applicant:

(a)  had competent English; or 

(b)  was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph

 

(1)  A person has competent English if:

(a)  the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

(b)  the person is an applicant for a visa; and

(ba)  for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa — the test was conducted in the 3 years immediately before the date of the invitation; and

(bb)  for a person to whom paragraph (ba) does not apply — the test was conducted in the 3 years immediately before the day on which the application was made; and  

(c)  the person achieved a score specified in the instrument.   

(2)  A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

The critical dates are: the date of invitation and the date of sitting the English test,not the date you 'passed' it.

 

Edited September 29, 2018 by wrussell

[authentikate]

Thanks for your replies.

Thanks @ali, we will try to contact some of them after the holiday weekend to ask about skilled visas for us.

And @wrussell, we now understand since the refusal that he could not pass the IELTS after the application was lodged and that there is no point in fighting it, but does it make any difference that the agent told us it would not be an issue, and that she did not think to wait until after the IELTS test was taken that was passed 2 days later? Maybe we should have looked into it ourselves but the whole point of an agent is that they are supposed to be better versed in how to do these things and lead you to make the right decisions.

When they asked her for further proof that he had competent English skills while assessing the visa, all she did was send them the few IELTS before that in which he got 6's in all but 1 subject and hoped that would be enough. She didn't even tell us that they had asked for further proof. Not that it would have made a difference, if I'm honest, but we've been kept in the dark and are now paying for her mistakes. 

 

Edited September 29, 2018 by authentikate

[wrussell]

What was the  date of the relevant test?

What was the date of visa invitation?

 

[authentikate]

The date of the relevant test was 01/02/18 and the visa was lodged on 29/01/18, so 3 days apart, not 2.

[Nemesis]

9 hours ago, authentikate said:

Thanks for your replies.

Thanks @ali, we will try to contact some of them after the holiday weekend to ask about skilled visas for us.

And @wrussell, we now understand since the refusal that he could not pass the IELTS after the application was lodged and that there is no point in fighting it, but does it make any difference that the agent told us it would not be an issue, and that she did not think to wait until after the IELTS test was taken that was passed 2 days later? Maybe we should have looked into it ourselves but the whole point of an agent is that they are supposed to be better versed in how to do these things and lead you to make the right decisions.

When they asked her for further proof that he had competent English skills while assessing the visa, all she did was send them the few IELTS before that in which he got 6's in all but 1 subject and hoped that would be enough. She didn't even tell us that they had asked for further proof. Not that it would have made a difference, if I'm honest, but we've been kept in the dark and are now paying for her mistakes. 

 

Was the agent MARA registered and if so, have you complained?

[authentikate]

 @Nemesis, she is registered and we are planning to complain but she is still on our file as our agent at the moment so we are waiting until we remove her and find another agent/lawyer to hopefully help us out of this mess.

It's complicated by the fact that she was given to us by the company that my partner is applying for sponsorship through and we haven't wanted to make too much of an issue in case that causes problems with them. But we have been planning a complaint since the issues regarding our wedding, and this has just been the icing on the cake.

There will definitely be a complaint lodged against her in the near future by us though.

I also just realised that I forgot to tag @wrussell in my last post regarding dates.