Changes to partner visa in November 2019

From November 2019, a person who holds certain types of visas (or whose last substantive visa held was of one of those types) will only be able to make a valid subclass 820 application if, before making that application, they have either held those types of visas for at least 3 years or obtain another substantive visa.

BVE on the basis of AAT application?

Common mistake: "My DIY client's onshore substantive visa application was refused, after which they missed the AAT deadline, overstayed their BVA and have become unlawful. As that client wants to remain in Australia, I will make an AAT application on their behalf arguing that such an application is not late, based on DFQ17. That will then enable a BVE application on the basis of the pending AAT application". That is incorrect.

MARA: “Relationships with other Agents”

OMARA: "As a member of the migration advice profession, the Agent is expected to act with fairness, honesty and courtesy when dealing with other [RMAs]. This includes efficient and effective communication with other agents with respect to the transfer of client information to the new agent when the original agent’s appointment is terminated... [T]he Agent had made a written undertaking to another migration agent to provide relevant documents, and had failed to do so, in breach of clause 4.6 of the Code".

Prospective marriage: marrying before grant

One of the requirements for the grant of a prospective marriage visa (subclass 300) is that the applicant still intends to marry the Australian/PR/NZ citizen at the time of decision. But if they marry before the visa is granted, is that visa automatically "converted" into a partner visa application?

No further stay: waiver, compelling & compassionate circumstances a must?

Common mistake: "a no further stay condition must be waived for most visa applications and can only be waived if compelling or compassionate circumstances have developed". Actually: a waiver is not always required; in cases where it is required, compelling or compassionate circumstances are sometimes unnecessary; a waiver is even given by default by ImmiAccount in many cases where compelling or compassionate circumstances are unnecessary.

MARA: “provision of unlawful migration assistance”

OMARA: "I am satisfied that the Agent knowingly entered into arrangements that facilitated the provision of unlawful migration assistance... I have taken into account that the applications submitted to the Department on behalf of these sponsors were handled through the Agent’s business and that she was the nominated migration agent. It follows that I am satisfied the Agent knew, else ought to have known, immigration assistance was provided unlawfully in relation to their respective matters".

BVA if person applies for visa while offshore?

Common mistake: It is commonly said that a BVA can only be granted if a person makes a substantive visa application while that person is onshore, but a closer look at the relevant legislative provisions reveals otherwise.

Migration Legislation Tracker

A single source about the status of pieces of legislation, Bills, commencement dates, disallowances, etc

Can incorrect information affect subsequent visas?

Common mistake: "If incorrect information is provided as part of visa application X and that visa is granted, visa X can be cancelled under s 109 of the Migration Act 1958, but if the same applicant applies for visa Y without providing incorrect information and that visa is granted, visa Y cannot be cancelled under s 109".

Can changes to TOA criteria after application is made affect eligibility?

Obviously, "time of application" (TOA) provisions set out the criteria applicants must meet with reference to the time of application. However, can TOA provisions change after an application is made in a way that impacts the applicant's eligibility? Readers might be surprised with the answer.

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