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Discussion Starter · #1 ·
Hi, my name is Paul.
I am looking for similar cases to ours.
My wife and I have been married for 5 years. We have gone through all relevant visas up to 820, which was granted in 2014. In May 2016 we have applied for 801. We have received a refusal, which we except. It still should give us the right to an appeal at the AAT tribunal.
IMMI case worker, however, issued the refusal while my wife – the applicant – was overseas on a two weeks’ trip to the country of her permanent residence and by law is not allowed to apply to AAT whilst offshore. Her 820 was cancelled that same day and we could not get her in to the country in specified 21 to appeal the decision.
We have contacted the Immigration department applied for tourist visitor 600 Sponsored Family visa to get her onshore in time to apply – got refused.
We have applied for tourist visitor 600 Main Stream visa – got refused.
Have spoken to number of Members of Parliament who have tried to assist with the grant of our visitor’s visas in time to meet the deadline for appeal.
I have written to Immigration minister and called his office 3 times explaining the situation and asking to intervene and grant the visitor’s visa to exercise our right to appeal to the AAT tribunal for review of the refusal of 801 Permanent residence visa – no help.
Deadline was 12 October 2018.
Any similar cases? Any advice, Please?
 

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Did you contact a RMA?? That would have been my first step.
 

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As is not giving reason/s for refusal.

Having a RMA every step of the way should be a good thing, contacting MP's to try intervene is the correct thing to do.

Claiming to have engaged a RMA will pretty much stop any of the RMA's that post here from commenting on your case.

Giving no details of why visa(s) have been refused makes it hard for anyone to give any meaningful advice Paul.
 

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thank you for your comment.
it was very helpful
This type of post really puts one off of replying.

What was the advice of the RMA you have paid for? What outcome are you hoping for from this post, as the general layman online will typically be of less value then that of a professional.

A visitors visa needs to meet the legislative requirments to be granted, i would suggest flying in to appeal another visa decision would not be in line with this.

Advice: get a good RMA, stat saving for another application.
 
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Discussion Starter · #9 ·
refusal of 801 is not the issue now, it is a fact..
.
The fact that the refusal was issued contrary to PAM instructions - not to refuse Partner visa 801 whilst the applicant is not in Australia,
and the departments refusal on two occasions to rectify this unjust denial of my wife’s right to appeal to AAT – that is the issue.
 

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refusal of 801 is not the issue now, it is a fact..
.
The fact that the refusal was issued contrary to PAM instructions - not to refuse Partner visa 801 whilst the applicant is not in Australia,
and the departments refusal on two occasions to rectify this unjust denial of my wife's right to appeal to AAT - that is the issue.
I think you're confused. The 801 visa can be processed whether the applicant is onshore or offshore. So, they did not violate PAM instructions. It's very important for applicants to fully understand the logistics when applying for a visa. Unfortunately, most do not which leads to situations like this. At this stage, you're options are limited. Looks like you'll need to apply for another partner visa, as since your partner was offshore when the 801 was assessed and denied, and the time for applying for AAT is passed...it's really the only option. I doubt they will approve a visitor visa, as the requirements for being a genuine tourist will be in doubt.

Sounds to me like you need a better RMA, as your RMA should have made you aware that an 801 can be approved/denied whether onshore or offshore.
 
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Discussion Starter · #13 ·
why do you think it is strongly advised not to:

29.2 Circumstances when not to immediately decide the application
Despite s65 requirements to proceed to decision after officers have made all reasonable efforts to contact the applicant and the applicant has failed to respond, there are situations where, under policy, it may be prudent as well as good administrative practice not to do so:
• if the applicant is outside Australia (as verified from the Movements database), they may be so only temporarily. There might be extenuating reasons (for example, family emergency) why the applicant has not notified the department of their change of address. It would be appropriate to wait a short while, say, three months, to allow for possible contact or, if possible until visa flight information from the Movements database is available, to alert the appropriate overseas post in case the applicant contacts the post. Should the applicant contact the overseas post, the post should advise the applicant to contact the relevant departmental office in Australia immediately

• Schedule 2 (801.411) allows a visa to be granted whether the applicant is in or outside Australia. If the applicant is outside Australia and the s65 delegate proceeds to refuse to grant the 801 via, the applicant will be unable to apply for merits review of the refusal decision (because they must be in Australia to do so - see section35 Merits review). Although this is not a reason in itself to defer making a refusal decision, delegates should be aware of the serious consequences for the applicant were they to do so. Therefore, under policy, it is open for an officer to defer making a decision for a short period, that is, up to 3 months, to allow time for the applicant to contact the department.
 

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The decision has been made from the sound of it. Your wife was out of the country. She cannot apply for AAT. She will have to do a new partner visa. And I highly doubt you'll get a visitor visa at this point.
 

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I am not seeking a life management assistant, I am looking for similar cases if there are any. if you are put of by the fact that you can not help - do not reply, please
Perhaps a life coach for an attitude adjustment, e entertainingly its not a case of cant help with this one its now wont help. Good luck.
 

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refusal of 801 is not the issue now, it is a fact..
.
The fact that the refusal was issued contrary to PAM instructions - not to refuse Partner visa 801 whilst the applicant is not in Australia,
and the departments refusal on two occasions to rectify this unjust denial of my wife's right to appeal to AAT - that is the issue.
PAMs is policy, it is not law. Going overseas on a sc. 801 around decision time can be risky unfortunately. The (undisclosed) reason for the refusal may have had some bearing on the decision. It is pointless to comment further without knowing the entire background.
 

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Not sure why you wanted to appeal to AAT if you agree with the refusal decision (as you said).

That aside, while waiting for the 801 decision it is always a risk that a refusal will be made when overseas. Did you notify the department that she was going overseas?

By your time line it appears you were waiting for the 801 for over 2 years. If that was the case there was no way I would have been going overseas until the decision had been made since you has been waiting that long.

Your only choice is to apply for a partner visa offshore and to address the refusal reasons that were made on the 801 refusal.
 
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Discussion Starter · #20 · (Edited)
dear Mish
I never said We agree with the refusal decision - I said we accept it as a matter of fact - it has happened. The way the case worker decided to deliver her decision and her reasons to do it this way - is very unusual and questionable.
My wife is a permanent resident of Switzerland for the past 17. that comes with certain obligations on her part to maintain that status, at least until we get permanent residence in Australia. She also runs a business there that affords us her continuous flying here and back to Switzerland on a monthly bases for us to be together and start building our life in Australia.She also run a business here in Melbourne and is an Australian taxpayer for the past 5 years.Case worker was well aware of our situation and had all info provided to confirm these facts, including 40-50 tickets to Australia and back to Switzerland. Also case worker acknowledged in her refusal that she was aware that my wife is not in the country at the time of refusal.
I hope this clarifies our situation a bit more.
 
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