Rare Case please help

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Rare Case please help


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  #1 (permalink)  
Old 02-11-2015, 11:48 AM
Active Member
 
Join Date: Feb 2015
Posts: 38
Users Flag! From hungary

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Exclamation Rare Case please help

First of all thanks for having me here !

My case is a bit twisty but i try to explain easy .

I came to Australia to my father (citizen) with E.Visitor . After 3 month we lodged Remaining Relative visa onshore . I got the visa Refusal around 12 month later.
I got the hearing date after 4 month if Im correct .
Now its coming the rarity .
My father get in Jail ( extradition to different country to go to be forced to go to court in )
My father was waiting his extradition meanwhile the MRT interview date came up and before 1 month I let MRT know about this situation ( give them any evidence AFP arrest etc.) And ask them in written letter that please give me some extension because my father cant attend with me on the interview ( he was my sponsor and the remaining relative is connected to him ) and I want to call my father with me like a witness . So they got this letter in time they didn`t answer so before 1 day my hearing date I called them in the morning that Im not gonna attend if my father/sponsor/witness can`t come with me ( my imi lawyer told me my sponsor have to be there thats against the law ).
I heard on phone they was not even touching my letter they was trying to fix quickly something they forgot to answer me . So around 2pm I got an email they don`t accept my request ( 13 hours before my hearing starts).
So I lodged this case to Federal Court and I got a date for next year , my court hearing next month 03/2015. So Im close to this date now .
But !!!

Meanwhile I met a beautiful girl who I fall in love deeply even before my father went to jail and we moved together we live now together more than 1year 3 month and we gonna merry next this march 16.
We wanted to lodge a Partner Visa On Shore but my lawyer told me Im gonna get if I do on shore Scheduel 3 problem and mostly likely I will not match the criteria .

Now Im devastated because even if I will win on Federal Court and they forcing MRT to give me new hearing date ( meanwhile my father extradited to the other country and his court finishing soon but he cant be here )

It can happen I have around 3-4 month and I have to leave because if I lodge Partner Visa On Shore Im gonna get Scheduel 3 and mostly likely I will be refused and loose a top of it 6800$ and will get a bad visa history .

Here is my question and if somebody can answer I will be so happy and thank full !!!

1. If I go out and lodge Off Shore Partner visa 309/100 is it possible to come back meanwhile with Tourist visa ?

2. Is it possible that if MRT not organising 2nd time with my dad a video conversation (becouse he is extradited to the country ) or giving a 2nd hearing date than Can I take this case again to Federal Court ( 2nd. time ) Or you just can go federal court 1 time even if you win there first time again MRT.

3. Do I have an option to lodge Minister letter if I loose on federal court and does that Minister letter will affect on my OFF SHORE Partner 309/100 later on ?

What you people would do in my case ?

Thank you whoever take the time and read my post and thank you if you can help me ! Im so sad and don`t know whats gonna happen with my life ...


Regs ,
P


  #2 (permalink)  
Old 02-11-2015, 07:38 PM
Senior Member
 
Join Date: Dec 2014
Location: Syney NSW
Posts: 5,121
Users Flag! From australia

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379 likes given
If you are legally represented, there is probably not much point in posting on a public forum. Presumably your representative is aware of the following:

The introduction of new policy guidelines on what amounts to ‘compelling reasons’ for not applying Schedule 3 criteria to applicants for Subclass 820/801 visas who are unlawful ,or who do not hold a substantive visa, has made success in such applications much more difficult.
Previously an Australia citizen child or a two year relationship would satisfy the Department.
However the new policy guidelines are much stricter-below is an extract from a letter from the Department setting out the guidelines:
Compelling reasons
With regard to subclause 820.211(2) (d)(ii), as you are unable to meet the relevant Schedule 3 criteria, I am required to determine if compelling reasons exist for not applying the Schedule 3 criteria. The Migration Regulations 1994 do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply Schedule 3 criteria 3001, 3003 and 3004 and circumstances are therefore to be considered on a case by case basis.
The provisions are not intended to facilitate persons who:
fail to comply with their visa conditions or
deliberately manipulate their circumstances to give rise to compelling reasons or
can leave Australia and apply for a Partner visa outside Australia.
Policy further states that the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria.
This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, while it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.
Consideration must be given to other factors which might also be deemed compelling to waive Schedule 3 requirements.
The term ‘compelling’ is not defined in the legislation, however the Full Federal Court in Babicci v MIMIA (2005) found that in any view of the meaning of compelling ‘the
circumstances must be so powerful that they lead the decision-maker to make a positive finding that the regulation should be waived
Migration agents need to carefully assess whether clients have a realistic chance of success with an application bearing in mind the filing fee of $6865.00, migration agent fees and other expenses.
In preparing submissions to the Department it must be remembered that the ‘compelling reasons’ are a ‘time of application’ requirement and ,strictly speaking, factors that arise after the application is lodged are not relevant.
An important issue to address is why it would not be reasonable for the parties to be separated if the visa applicant had to travel overseas to apply for a partner visa and the sponsor could not join him or her.
The writer has recently had success with submissions on this issue where the sponsor was a person with a serious medical condition who needed the daily assistance of the visa applicant.
AnotherThe introduction of new policy guidelines on what amounts to ‘compelling reasons’ for not applying Schedule 3 criteria to applicants for Subclass 820/801 visas who are unlawful ,or who do not hold a substantive visa, has made success in such applications much more difficult.
Previously an Australia citizen child or a two year relationship would satisfy the Department.
However the new policy guidelines are much stricter-below is an extract from a letter from the Department setting out the guidelines:
Compelling reasons
With regard to subclause 820.211(2) (d)(ii), as you are unable to meet the relevant Schedule 3 criteria, I am required to determine if compelling reasons exist for not applying the Schedule 3 criteria. The Migration Regulations 1994 do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply Schedule 3 criteria 3001, 3003 and 3004 and circumstances are therefore to be considered on a case by case basis.
The provisions are not intended to facilitate persons who:
fail to comply with their visa conditions or
deliberately manipulate their circumstances to give rise to compelling reasons or
can leave Australia and apply for a Partner visa outside Australia.
Policy further states that the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria.
This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, while it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.
Consideration must be given to other factors which might also be deemed compelling to waive Schedule 3 requirements.
The term ‘compelling’ is not defined in the legislation, however the Full Federal Court in Babicci v MIMIA (2005) found that in any view of the meaning of compelling ‘the
circumstances must be so powerful that they lead the decision-maker to make a positive finding that the regulation should be waived
Migration agents need to carefully assess whether clients have a realistic chance of success with an application bearing in mind the filing fee of $6865.00, migration agent fees and other expenses.
In preparing submissions to the Department it must be remembered that the ‘compelling reasons’ are a ‘time of application’ requirement and ,strictly speaking, factors that arise after the application is lodged are not relevant.
An important issue to address is why it would not be reasonable for the parties to be separated if the visa applicant had to travel overseas to apply for a partner visa and the sponsor could not join him or her.
The writer has recently had success with submissions on this issue where the sponsor was a person with a serious medical condition who needed the daily assistance of the visa applicant.
Another situation where such a separation might be unreasonable would be where the sponsor was the sole person working to support the family. situation where such a separation might be unreasonable

__________________
Westly Russell
Registered Migration Agent
Number 0316072
pinoyau.com

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