THE MESSAGE. BRINGING INTO FOCUS FILIPINO PRESENCE IN AUSTRALIA
www.kalatas.com.au | Volume 4 Number 8 | May 2014
IMMIGRATION
After 19 years of hiding…
A spouse visa, finally
I
represented a woman
who endured 19 years
of being illegal as apparently she was told
that she could not be
sponsored by her partner in
Australia because of the ‘no
further stay’ condition on her
tourist visa.
During those years, she
limited her socialisation to relatives only and stayed most of
the time at home for fear of being discovered. Her loving husband agreed not to have a baby
even if they were young with
the worry that raising a child
could expose her illegal status.
While it is true that a person cannot file a substantive
application on shore if there
is a ‘no further stay’ condition
attached to the visa previously granted, there’s a mechanism
whereby that restriction can be
waived or lifted.
The applicant can lodge
an application to the No Further Stay Processing Centre in
Parramatta NSW and explain
the following: (a) that there are
compelling and compassionate circumstances (b) that de-
veloped after the person was
granted the visa, and (c) those
circumstances were beyond
the control of the applicant.
It will not be an easy submission. It will assist in the success
of the application if the applicant can provide: medical evidence to show that the Australian citizen or permanent resident has medical problems
that arose after the applicant’s
arrival in Australia and a social worker or psychologist report to indicate that the Australian citizen is solely reliant on
the partner for support if that
is the case. There should also
be proof that that support is not
available from relatives of the
Australian citizen or permanent resident partner.
Under the present migra-
tion legislation, an illegal person is allowed to file in Australia a partner or spouse application provided:
l The last visa granted like
tourist or visitor’s visa did not
contain a ‘no further stay’ condition. If it does, I suggest you
file an application to waive that
condition based on the above
cited grounds.
l Since the person’s stay in
Australia, the illegal person has
not filed any previous partner
visa application. For example,
the person with expired visa arrived in Australia in 2000. Before her visa expired, she was
sponsored by a previous partner on shore which was subsequently denied. She then remained in Australia without
any valid visa. In this case, the
applicant is prohibited from filing another partner application
while in Australia.
Only prior partner visa application is mentioned in the
legislation. Therefore, if the
applicant has been denied on
any other application like protection or student visa or just
remained in Australia with ex-
Deal only with
registered agents
IMMIGRATION
ATTY. JESSIE
ICAO
[email protected]
pired visa, the applicant can still
apply a partner visa on shore.
Prior to the amendment of the
legislation, an applicant is prevented from filing an application if he/she has lodged any
substantive application which
was refused pursuant to section
48 of the Migration Act.
l Pass that character test
required by section 501 of the
Migration Act, which means
that the applicant has no criminal convictions in Australia.
l All other requirements
must be satisfied including statutory declaration of two witnesses in form 888. At a later
stage the case officer will require the applicant to explain
the so called ‘schedule 3’ criteria.
In the case above, the woman lodged a partner visa application as she was discovered
by the Department of Immigration and Border Protection
after 19 years of hiding. Although she was in a relationship for 18 years with her partner, her visa contained a ‘no
further’ stay condition which
barred her from filing the
07
spouse application on shore.
Before filing the partner application, I requested a waiver
of the condition based on the
medical condition of her partner that arose after her arrival in Australia and the fact that
the partner has no other relative in Australia to look after
him. The waiver was granted.
It enabled me to file the partner application. After a year of
processing, she has been granted partner temporary visa and
eventually partner permanent
visa.
Jessie Icao is a
practising solicitor
in the State of New
South Wales and
registered migration
agent since 1993
(MARN 9367993). He
is admitted as a lawyer
in the Philippines. The
information provided
is of general nature
and cannot be relied in
its entirety. I suggest
that you consult a
registered migration
agent or refer to the
relevant law.
BE sure to deal only with registered migration agents when you
are seeking assistance regarding
visa for you, your family or relatives.
“Only people who are registered with the Office of the Migration Agents Registration Authority (OMARA) are permitted
to give immigration assistance,”
an immigration spokesman said.
There are more than 5000
registered migration agents in
Australia and overseas who can
provide immigration assistance.
The Department of Immigration and Border Protection
issued the reminder to the public anew following the recent
cancellation of a registration of
a Sydney-based Chinese migration agent after facing a number
of complaints about applications
for visas.
The decision to cancel her
regi