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Guest JamesTrigg

Subclass 485 Visa and Secondary Applicant Issues.

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Guest JamesTrigg

Hey all, please give me some expert advice here on my situation. I am currently holding a student visa, just graduated and have all my documents ready to apply for the Skilled – Graduate (Temporary) visa (subclass 485). However, I am planning to include a partner, my girlfriend (3years relationship) into the Subclass 485 visa being her as a secondary applicant while me as a main applicant for this visa. My girlfriend is currently here in Aussie too holding a Work and Holiday visa (Subclass 462) and her visa has a 'condition 8503' on it. I would like to ask whether is it possible for her to be the secondary applicant for the subclass 485? If can't, what are the other solutions I can look into? I really appreciate all your opinions and all your tips. Thanks loads smile.gif

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Guest Glenn Pereira

Hi James,

 

1. What is your occupation ?

2. What course are you studying ?

3. She has to hold a student visa ?

4. She cannot apply on-shore for a student visa because she has 8503.

 

Regards

Glenn

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Guest wanderer

With the 8503 condition you could look at seeing if a waiver would be granted - http://www.immi.gov.au/media/fact-sheets/52bWaiving_Condition8503.htm

On the conditions outside of the Gf's control they may accept your decision to apply for a 485 visa as sufficient reason, and no real harm done to apply.

 

If a waiver was not to be granted, it could be feasible for her to arrange to have the visa cancelled on leaving from Australia for a short time when your 485 is granted.

It could even be that her being outside of Australia when granting was done will in fact cancel her 462 anyway if approved as a secondary applicant and she could then return.

 

You may be able confirm either way or get some direction when you approach DIAC re submitting the written waiver request.

 

For her to be approved as a secondary applicant DIAC require evidence to support that - General Skilled Migration

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Guest JamesTrigg
With the 8503 condition you could look at seeing if a waiver would be granted - Australian Immigration Fact Sheet 52b. Waiving Visa Condition 8503 - "No Further Stay"

On the conditions outside of the Gf's control they may accept your decision to apply for a 485 visa as sufficient reason, and no real harm done to apply.

 

If a waiver was not to be granted, it could be feasible for her to arrange to have the visa cancelled on leaving from Australia for a short time when your 485 is granted.

It could even be that her being outside of Australia when granting was done will in fact cancel her 462 anyway if approved as a secondary applicant and she could then return.

 

You may be able confirm either way or get some direction when you approach DIAC re submitting the written waiver request.

 

For her to be approved as a secondary applicant DIAC require evidence to support that - General Skilled Migration

 

Thanks for your opinions. I just checked out that fact 52b form is not applicable to me as this within under her control. I also want to ask since my partner is working in Aussie under the ASCO code oppucation 6*** (I am not exactly sure about the exact ASCO code), I actually recommended her to try the "Labour Agreement" Visa that is able her to stay here longer, but does the "condition 8503" still apply if she chose to opt for Labour Agreement?

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Guest wanderer

It would still mean another visa and if the 8503 blocks that, it'll be a no go even if it was possible.

 

Who have you checked with re the waiver not being possible?

If you do not go to DIAC you'll not be at the horses mouth and if you both turn up and explain what you'd like to do, irrespective of who else tells you what, you may just find that DIAC officers can have a heart and compassion.

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Guest JamesTrigg
It would still mean another visa and if the 8503 blocks that, it'll be a no go even if it was possible.

 

Who have you checked with re the waiver not being possible?

If you do not go to DIAC you'll not be at the horses mouth and if you both turn up and explain what you'd like to do, irrespective of who else tells you what, you may just find that DIAC officers can have a heart and compassion.

 

I read the waiver policy from the website you sent me at the previous post. Here is what the websites states:

 

Waiver of condition 8503

 

Requesting a waiver of condition 8503

 

It is not possible to request that a mandatory condition 8503 be left off your visa at the time you apply for the visa. However, if you are in Australia holding a visa with condition 8503 imposed on it and your circumstances change, there is provision to waive the condition in limited circumstances that are set out at Regulation 2.05(4) of Australia's migration legislation.

This regulation states:

.. 'the circumstances in which the Minister may waive [condition 8503] are:

(a) since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:

(i) over which the person had no control; and

(ii) that resulted in a major change to the person's circumstances; and

(b) if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and

© if the person asks the Minister to waive the condition, the request is in writing'.

Because this is law, it is not possible for the department to consider waiving the condition for any other reasons.

Therefore, if you do request a waiver of condition 8503, the departmental officer who considers your request must be satisfied that all of the above requirements apply in your case, namely that:

 

 

  • the circumstances that have developed since you were granted the visa are both compassionate and compelling

  • you had no control over these circumstances

  • these circumstances have resulted in a major change to your personal circumstances.

 

Waiver is not automatic - each request is decided by assessing your particular situation against the above legal requirements.

 

 

 

 

I will try to check out with the available options my partner can opt for before both of us going to the DIAC so that we are prepared to ask them everything once and for all.

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Guest Glenn Pereira

Requesting a waiver of condition 8503

It is not possible to request that a mandatory condition 8503 be left off your visa at the time you apply for the visa. However, if you are in Australia holding a visa with condition 8503 imposed on it and your circumstances change, there is provision to waive the condition in limited circumstances that are set out at Regulation 2.05(4) of Australia's migration legislation.

 

This regulation states:

 

.. 'the circumstances in which the Minister may waive [condition 8503] are:

(a) since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:

 

(i) over which the person had no control; and

 

(ii) that resulted in a major change to the person's circumstances; and

 

(b) if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and

 

© if the person asks the Minister to waive the condition, the request is in writing'.

 

I would be extremely careful on taking wanderer's suggestions.

 

Your best bet is to lodge an offshore student dependent visa for your "spouse".

 

If you have completed a Trade course, you should be aware that 900 hrs will be eliminated once the "job ready test" comes in.

 

regards

Glenn

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Guest JamesTrigg

If you have completed a Trade course, you should be aware that 900 hrs will be eliminated once the "job ready test" comes in.

 

I don't get what you mean for this phrase, really appreciate it if you can elaborate it in detailed :). I am currently not working yet as I just got my results from university. If I apply for the Subclass 485 visa having my partner as a secondary applicant, is she able to work here as well? Or she needs to apply for another separate permit in order for her to work here legally.

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Guest wanderer

JT,

since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:

(i) over which the person had no control; and

 

Compelling and compassionate

You've been together three years and are committed to staying together, you Gfs 462 being evidence of extent of commitment.

 

over which the person had no control

You are the one deciding on your career and whilst your Gf does not want to restrict you, the 485 is your visa application you want to include her on, not hers.

 

that resulted in a major change to the person's circumstances

And that will certainly be so in the sense that her if her 462 with the waiver prevents her from being included on the 485.

 

DIAC will not bite your head off and the very worse that can happen is they'll say no way Jose.

Then you discuss Plan B.

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Sorry to rain on your parade again, Wanderer, but

 

Compelling and compassionate

You've been together three years and are committed to staying together, you Gfs 462 being evidence of extent of commitment.

 

over which the person had no control

You are the one deciding on your career and whilst your Gf does not want to restrict you, the 485 is your visa application you want to include her on, not hers.

 

that resulted in a major change to the person's circumstances

And that will certainly be so in the sense that her if her 462 with the waiver prevents her from being included on the 485.

 

is specious in the extreme, and James would do himself and his GF no favours by taking your 'advice'.

 

As I advised a Lebanese client a couple of weeks ago, the only way he would get the 8503 waived would be if he could arrange for Israel to invade Lebanon and Beirut was being bombed to bits. That constitutes compelling and compassionate reasons beyond the applicant's control.

 

James, for goodness sake spend a little money by sitting down with a properly qualified professional in your capital city and get some proper advice taking into account all your circumstances. Send a PM (or email) to Gollywobbler on this forum (she is a UK based solicitor), tell her which city you are in and ask for a recommendation.


Les Mighalls BDS LLB(Hons) LDS FACLM, MARA Reg. No. 0639714

Migration Assistance Australia

www.migrationassistance.com.au

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Guest JamesTrigg
Sorry to rain on your parade again, Wanderer, but

 

 

 

is specious in the extreme, and James would do himself and his GF no favours by taking your 'advice'.

 

As I advised a Lebanese client a couple of weeks ago, the only way he would get the 8503 waived would be if he could arrange for Israel to invade Lebanon and Beirut was being bombed to bits. That constitutes compelling and compassionate reasons beyond the applicant's control.

 

James, for goodness sake spend a little money by sitting down with a properly qualified professional in your capital city and get some proper advice taking into account all your circumstances. Send a PM (or email) to Gollywobbler on this forum (she is a UK based solicitor), tell her which city you are in and ask for a recommendation.

 

I am considering looking for a migration agent but before looking for a migration agent im trying to sort out all the options that my GF can opt for then I'll consult the migration agent. Les, being you as a migration agent, I appreciate your help on this question. When including my partner (my gf) as a secondary applicant as de facto relationship, what are the supporting documents needed to show the DIAC that we're in a de facto relationship?

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Guest wanderer

It'll cost you one hell of a lot less to talk to DIAC James, like zero.

 

As you know yourself, each decision is based on its merit, so what may have been for one can be different for another.

 

If DIAC give you a desired answer to waiver, you do not need to go talking to solicitors and even if you get a No from DIAC, perhaps Les will be able to say what you can expect a solicitor to do for you other than charge.

 

Of course an IA would love to take you on as a client too.

 

For a defacto partner to be a secondary applicant, I put the DIAC requirements @ Post #3 - General Skilled Migration

 

But have a look at just about any visa on www.immi.gov.au and under the eligibility section you'll find main applicant and secondary applicant links.

Reading them is a great idea.

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Guest Glenn Pereira
I don't get what you mean for this phrase, really appreciate it if you can elaborate it in detailed :). I am currently not working yet as I just got my results from university. If I apply for the Subclass 485 visa having my partner as a secondary applicant, is she able to work here as well? Or she needs to apply for another separate permit in order for her to work here legally.

 

 

Please let me know the following

 

 

  • Name of course

  • course commenced on

  • course completed on

  • visa expiry date

You cannot add your partner on a 485 on the existing visa.

 

Regards

Glenn Pereira

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Guest JamesTrigg
Please let me know the following

 

 

  • Name of course

  • course commenced on

  • course completed on

  • visa expiry date

 

You cannot add your partner on a 485 on the existing visa.

 

Regards

Glenn Pereira

 

Name of Course - Bachelor of Landscape Architecture.

Course Commenced on - 20th February 2006

Course Completed on - 16th October 2009

Visa expiry date - 1st March 2010

 

If I cannot add a partner on a 485 on the existing visa, what should me or my partner do?

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Guest wanderer
You cannot add your partner on a 485 on the existing visa.

 

I'm not sure what Glenn means by that unless he is just re-iterating that the 8503 stops that option for now, the whole point of your post and the alternatives that have been suggested.

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Hi Wanderer

 

The 485 is quite a prescriptive visa espacially in relation to secondary applicants. Let's take the three scenarios of 1 - applying together with a combined application for a 485 visa, 2 - adding dependent during the application, 3 - applying for dependent 485 after main applicant has been granted the 485.

 

Working backwards:

 

3 - no problem here for a member of the family unit, can apply inside or outside Australia and processing not held up by the new processing priorities.

 

2 - Impossible, there is no provision to "add" a dependent during the procesing of a 485 visa.

 

3 - only possible if the dependent meets certain criteria, otherwise the dependent cannot even make a valid application - e.g. dependent is the holder of a neligible student visa etc.

 

So the 8503 is not the only problem here - even without the 8503 there is a huge problem.

 

Regards


Anthony Coates MARN: 0601801

tonycoates@eircom.net

 

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Guest JamesTrigg
Hi Wanderer

 

The 485 is quite a prescriptive visa espacially in relation to secondary applicants. Let's take the three scenarios of 1 - applying together with a combined application for a 485 visa, 2 - adding dependent during the application, 3 - applying for dependent 485 after main applicant has been granted the 485.

 

Working backwards:

 

3 - no problem here for a member of the family unit, can apply inside or outside Australia and processing not held up by the new processing priorities.

 

2 - Impossible, there is no provision to "add" a dependent during the procesing of a 485 visa.

 

3 - only possible if the dependent meets certain criteria, otherwise the dependent cannot even make a valid application - e.g. dependent is the holder of a neligible student visa etc.

 

So the 8503 is not the only problem here - even without the 8503 there is a huge problem.

 

Regards

 

As a migration agent, what are your recommendations you have for me for my situation?

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Guest wanderer

What Welshtone is referring to James is the possibility of the student visa your Gf holds being an ineligible one, ie read

Skilled – Graduate (Temporary) visa (subclass 485)

 

And check out whether her visa is an eligible one or one that is ineligible.

re that being huge! is debatable.

 

It'll only come into play if in fact you can get a waiver on the 8503.

If no waiver, it is not an issue but unless Welshtone comes up with the goods, there is still some confusion there for on one hand you have:

Skilled – Graduate (Temporary) visa (subclass 485)

with

 

 

Your family members must meet all of the following requirements:

 

 

 

  • and a link to

 

 

 

 

  • Which may be the process that Welshtone is referring to as option 3. , kind of Plan B we discussed re the Gf having to leave because of the 8503 if it is not waived.

It is worth noting the second last suggestion on the eligibile visas page - contact us

 

In order it seems to me to be - Eligible Visa? No > Plan B/ Waiver? No > Plan B./ Waiver? Yes > Eligible Visa? No > Plan B / Waiver? Yes > Eligible Visa? Yes > meets other eligibility?, then proceed.

Just a sequence of testing whether eligibility exists to do it onshore or whether it'll need to be an offshore application.

And your head will still be intact after visiting DIAC.

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Hi James

 

I am between Registrations at the moment so am not currently a Registered Migration Agent. It is very hard to give specific advice as I would need all the information and circumstances. If she is a USA or Malaysian citizen, a possible option would be to leave near the end of her 462 visa and then come back on an ETA after the 462 visa has expired (The grant of the ETA will not cease the 462 visa so she must arrive after the 462 has otherwise ceased). This gets her inside Australia without the 8503 but she is still not holding an eligible visa to be included in the 485 application. The 462 is also an ineligible visa so getting the 8503 waived, if possible, just wastes time. So she would then need to apply for a Student Dependent visa which would need to be granted before she could make a combined 485 application with you.

 

With likely grant dates of your 485, and subsequent 885 visa, being delayed a couple of years or more, the best case scenario is for her to get a student dependent visa before you apply for your 485. This may be possible if she leaves Australia and immediately applies for this. You should immediately seek face-to-face expert advice from a Student/GSM specialist. There are so many other factors to consider - her nationality, Student assessment levels, your financial standing, evidence of de-facto relationship etc etc.

 

Do not waste time going to visit DIAC unless you can do it tomorrow and then it has not delayed proper action by too long.

 

Regards


Anthony Coates MARN: 0601801

tonycoates@eircom.net

 

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Guest JamesTrigg
Hi James

 

I am between Registrations at the moment so am not currently a Registered Migration Agent. It is very hard to give specific advice as I would need all the information and circumstances. If she is a USA or Malaysian citizen, a possible option would be to leave near the end of her 462 visa and then come back on an ETA after the 462 visa has expired (The grant of the ETA will not cease the 462 visa so she must arrive after the 462 has otherwise ceased). This gets her inside Australia without the 8503 but she is still not holding an eligible visa to be included in the 485 application. The 462 is also an ineligible visa so getting the 8503 waived, if possible, just wastes time. So she would then need to apply for a Student Dependent visa which would need to be granted before she could make a combined 485 application with you.

 

With likely grant dates of your 485, and subsequent 885 visa, being delayed a couple of years or more, the best case scenario is for her to get a student dependent visa before you apply for your 485. This may be possible if she leaves Australia and immediately applies for this. You should immediately seek face-to-face expert advice from a Student/GSM specialist. There are so many other factors to consider - her nationality, Student assessment levels, your financial standing, evidence of de-facto relationship etc etc.

 

Do not waste time going to visit DIAC unless you can do it tomorrow and then it has not delayed proper action by too long.

 

Regards

 

One advice I was told is to do this way too, ask her to leave Aussie and apply for an ETA visa. My question is my gf's work and holiday visa expires on June 2010 and my dateline applying for the 485 visa is Feb 2010. If my gf goes back to her home country on Jan 2010 and apply for an ETA, is her work and holiday visa considered canceled and she can come in to Aussie on Feb 2010 with the ETA? I ask this because her work and holiday visa hasn't expired yet when she applies for her ETA.

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Hi all, currently i applied 176 visa on may 2008, and still waiting till now (immigration said will be prossed till 2012). We have plan to apply 485 visa. Do i have to take another ielts? Because the previous ielts is already expired. And do i have to do medical test before lodge the application? Can i do the medical in overseas? Thanks for helping

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Guest wanderer

Hey James,

One advice I was told is to do this way too, ask her to leave Aussie and apply for an ETA visa. My question is my gf's work and holiday visa expires on June 2010 and my dateline applying for the 485 visa is Feb 2010. If my gf goes back to her home country on Jan 2010 and apply for an ETA, is her work and holiday visa considered canceled and she can come in to Aussie on Feb 2010 with the ETA? I ask this because her work and holiday visa hasn't expired yet when she applies for her ETA.

How did you go with your plans?

 

If your Gf is eligible to apply for an online ETA she doesn't have to go all the way home to get one and could just get one in NZ.

 

I think if I recall correctly from what some IAs have said, any application for a substantive visa that is granted will supercede any existing visa and not 100% on whether that'll be the case with an ETA over a WHV but DIAC or an IA should be able to confirm that.

 

If it doesn't and she is eligible to do an ETA online, all she should have to do is fly to NZ on her WHV [and have a return flight booked] send an email to DIAC to request cancellation and then apply for an ETA.

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Guest cadom

 

If you have completed a Trade course, you should be aware that 900 hrs will be eliminated once the "job ready test" comes in.

 

regards

Glenn

 

 

Hi, this is my first post on this forum, Ive been reading the discussions about 900 hours and I'd like to ask Glen if it's 100% sure that the job ready test will substitute the 900hours from 1st January 2010.

 

Regards.

Cadom

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