Policy on tourist visa applications to visit partner in Australia

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Policy on tourist visa applications to visit partner in Australia


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Old 07-02-2012, 12:18 AM
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Policy on tourist visa applications to visit partner in Australia

Hi everyone,

I have been reading Procedures Advice Manual 3 (PAM3), which are the official instructions given to decision-makers on migration law (=case officers). This is available through Lexis Nexis, a company which publishes law-related documents electronically, and it should be possible for any member of the public to access it free at any local Australian university library, where the university has a law faculty.

I've found some interesting things that I thought would also be of general interest to the forum. *I am not in any way a lawyer, just a sponsor of a partner visa applicant, and this information is simply a reproduction rather than an interpretation.*

There have been a few threads from people who are hoping to visit their partner in Australia on a tourist visa, and are wondering whether they might be granted that tourist visa. This is the policy regarding all tourist visa applications, especially in assessing whether an applicant is a 'genuine visitor'.

(This is located in 'Generic Guidelines H - Visitor Visas' of PAM3.)

Quote:
8.2 Assessing whether the applicant meets the genuine visitor requirement

In establishing whether this criterion is satisfied, relevant considerations may include, but are not limited to:
  • the personal circumstances of the applicant that would encourage them to return to their home country at the end of the proposed visit
  • the applicant's immigration history (for example, previous travel, compliance with immigration laws of Australia or other countries, previous visa applications/compliance action)
  • the personal circumstances of the applicant in their home country that might encourage them to remain in Australia (for example, military service commitments, economic situation, civil disruption)
  • conditions that might encourage the applicant to remain in Australia
  • the applicant's credibility in terms of character and conduct (for example, false and misleading information provided with visa application)
  • whether the purpose and proposed duration of the applicant's visit and their proposed activities in Australia are reasonable and consistent (for example, is the period of stay consistent with "tourism")
  • information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department about nationals from the applicant's home country. Such information, developed as profiles, may assist officers in deciding whether closer examination of an application is required to ensure the integrity of the visitor visa program.

Personal circumstances that may encourage the applicant to return to their home country ("home country" being country of usual residence), include:
  • on-going employment
  • the presence of immediate family members in their home country, that is, does the applicant have more close family members living in their home country than in Australia
  • property, or other significant assets, owned in their home country and
  • currently residing in a country whose nationals represent a low risk of immigration non-compliance, even though the applicant is originally from a country whose nationals represent a statistically higher risk of non-compliance.

Officers should also consider the applicant's economic situation — including unemployment or employment that, based on knowledge of local employment conditions, such as salary rates, would not constitute a strong incentive for the applicant to leave Australia.

Consideration of the applicant's immigration history may include but is not limited to:
  • previous travels to Australia; that is:
    • has the applicant previously travelled to Australia and, if so
    • did they comply with the conditions of their visa (or, if not, were the circumstances beyond their control) and
    • did they leave before their visa ceased
  • previous visa applications for Australia; that is:
    • has the applicant previously applied for a permanent Australian visa and
  • previous travels overseas; that is:
    • has the applicant travelled to countries other than Australia
    • has the applicant previously travelled to a country where there would be significant incentives for them to remain, in which case, did they comply with the immigration laws of that country.

In assessing this factor, officers may give weight to applicants who had travelled to and complied with the immigration laws of a country(ies) that has significant incentives for the applicant to remain in that country(ies), either for economic or personal reasons. However, officers may have to use judicious discretion if there is a lack of travel history.

Conditions that might encourage the applicant to remain in Australia, include:
  • the applicant's personal ties to Australia, that is:
    • does the applicant have more close family members living in Australia than in their home country
    • is the applicant subject of adoption proceedings that have not been resolved in their home country
    • military service commitments
    • civil disruption, including war, lawlessness or political upheaval in the applicant's home country and
    • economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant's home country.

Where consideration of the factors above raise doubts about the applicant's ability to meet the genuine visitor requirement, such as where the applicant's circumstances may suggest the need for greater scrutiny, officers may consider/request additional evidence that demonstrates that the applicant intends a genuine visit.

Officers may request further evidence from the applicant, where considered appropriate, if departmental statistical or intelligence reports on migration fraud, or profiles based on such reports, indicate that there is a significantly greater likelihood of nationals from the applicant's home country:
  • staying in Australia beyond the expiry of their visa
  • having their visa cancelled
  • being refused entry to Australia or
  • making asylum claims or applying for a Protection visa (PV).

Note: The mere fact that an applicant matches the characteristics of a profile is not grounds to refuse to grant a visa. Profiles are merely an alert that closer scrutiny of the applicant's circumstances might be required. All applications must be considered on their own merits taking into account all the information and supporting documentation provided by the applicant.

Additional evidence that officers may wish to consider in deciding whether an applicant is a genuine visitor include:
  • evidence that the applicant has been employed for at least the previous 12 months, has approved leave for the period of stay sought and will continue to be employed on their return home or
  • if self-employed, evidence they have owned their own business for the previous 12 months or
  • if retired/non-working have other financial commitments and/or family/social ties that would provide sufficient inducement for them to return to their home country at the end of their visit or
  • good immigration history.

Generally, offers of support or guarantees given by family and friends in Australia are not sufficient evidence of a genuine visit. The onus is on the applicant to satisfy the decision maker that they intend only to visit Australia. Guarantees from connections in Australia can, however, be critical in assessing whether an applicant has or has access to adequate funds.

8.3 Taking a fair & reasonable approach

Officers should take a fair and reasonable approach to the genuine visitor requirement, particularly if the applicant is in a partner relationship with an Australian citizen or permanent resident and/or there are children involved — see section 46: In a relationship with an Australian for further information.

The focus should be on the current intentions of the applicant. Consequently, the genuine visitor requirement can be satisfied provided the decision maker is satisfied that the applicant intends to leave Australia within the authorised period of stay, even if there is a suggestion that the applicant might later attempt to seek permanent residence and/or return to Australia.

In cases where the period of stay requested raises concerns about an applicant's ability to meet the genuine visitor requirement, case officers should consider whether a shorter period of stay would enable them to be satisfied that the visa criteria are met.

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Last edited by Adventuress; 07-02-2012 at 10:16 AM.

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Old 07-02-2012, 12:22 AM
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And this is Section 46, as referred to in the previous post, which is the part that relates specifically to those tourist visa applicants that have an Australian partner:

Quote:
46 In a relationship with an Australian

46.1 Overview

Decision makers are encouraged to take a fair and reasonable approach where the applicant is involved in a partner relationship with an Australian citizen or permanent resident. A range of factors should be taken into consideration before deciding that such a relationship creates a strong incentive not to leave Australia.

46.2 Partner visa application lodged offshore

If a visitor visa applicant is the partner of an Australia citizen or permanent resident and has followed standard migration procedures by lodging a Partner visa migration application offshore, decision makers should facilitate short visits by the visa applicant to Australia, particularly in situations where:
  • the applicant is e676, eVisitor or ETA eligible or
  • the couple have been together for a significant period or
  • the couple are well established in their home away from Australia or
  • there are no concerns about the genuineness of the relationship or the validity of the marriage or
  • the applicant wishes to travel to Australia for a short visit for a special occasion or
  • there are compelling circumstances that justify the granting of a visitor visa (for example, family member of Australian partner seriously ill) or it would be in the best interests of a child to do so.

Decision makers must still, however, be satisfied that the applicant meets the genuine visit criterion.

It is open to the decision maker to impose an 8503 if residual concerns exist and the decision maker is concerned that the applicant may try to change their immigration status onshore without compelling reasons to do so.

Imposition of condition 8503 is, however, likely to be unnecessary in such cases given that the applicant has been upfront and already lodged a permanent visa application offshore — and may be unlikely to lodge again onshore and pay a second VAC. See PAM3: Sch 8/8503 for further information.

All applicants, other than subclass 303 holders, who have made a Partner (subclass 309) visa, must be outside of Australia in order for the 309 visa to be granted. Visitor Policy Section does not support delaying decisions on Visitor applications pending the outcome of a Partner visa application. However, case officers should ensure that applicants are aware that, if they satisfy all the criteria for grant of the 309 visa, they will be required to be outside of Australia at the time of the 309 visa grant.

46.3 No permanent visa application lodged

Similar factors, as listed above, should be taken into account if a Tourist visa applicant is in a relationship with an Australia citizen, or permanent resident and eventually may intend to reside permanently in Australia, but has not yet made a final decision to do so and/or lodged a permanent visa application offshore. In these circumstances, decision makers must give careful consideration as to whether the applicant meets the genuine visitor requirement.

The possible eventual intention of the applicant to stay permanently in Australia should not, in itself, be considered ground to refuse a Tourist visa. Decision makers should consider the applicant's current intentions and whether the applicant is attempting to circumvent proper migration channels.

For example, if an applicant seeks to travel to Australia to meet future parents in law and determine whether they wish to live in Australia with their partner, but has a history of abiding by visa conditions and will be returning home to complete a university degree prior to lodging a Partner visa application there may be no concerns about the genuine nature of the visit.

Decision makers may consider imposing an 8503 if they have residual concerns about the applicant’s intentions.

46.4 Cases where pregnancy involved

See section 61.3: Pregnant visa applicants.

46.5 De facto relationships

The fact that an applicant may be seeking to extend their stay in Australia to enable them to meet the regulation 2.03A(3) duration of relationship criterion for a Partner visa is not in itself a reason to refuse to grant a Tourist visa.

In such case, officers should consider whether the applicant meets the genuine visitor requirement and/or whether the applicant is likely to abide by visa conditions. For example, if the applicant is low risk, and the decision maker is satisfied that they will not work whilst in Australia and abide by their visa conditions, it may be appropriate for a visa to be granted. Each case must be treated on its own merits.


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Old 07-02-2012, 12:24 AM
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And finally, section 61.3, about visa applicants who are pregnant:

Quote:
61.3 Pregnant visa applicants

The primary intention of the applicant will determine if a Medical Treatment visas (subclasses 675 and 685) or a Tourist (subclass 676) is most appropriate for pregnant visa applicants.

For example, if the primary intention of an applicant is to visit Australia to give birth, then a Medical Treatment visa (MTV) is the preferred option — see PAM3: Sch 2 Visa 685 — Medical Treatment (Long Stay).

If the primary intention of an applicant is to be with family members, travel and also give birth, then a Tourist visa can be granted or extended onshore.

Pregnant applicants who are not applying for a Medical Treatment visa are required to undergo health assessments according to the health matrix. Most pregnant applicants are likely to enter a hospital or healthcare environment during their stay in Australia and therefore may require additional testing. This will apply mainly to applicants from medium and higher risk countries.

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Old 07-02-2012, 08:18 AM
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Fantastic work Adventuress. Ahh I love Lexis Nexis. This should be read by everybody as it answers so many quesions!

46.5 is especially important for the defacto couples trying to meet the 12 month living together requirement. I have always been a bit dubious of how immigration would view these applications for tourist visa but seems they are being very lenient. Great news!


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Old 07-02-2012, 08:39 AM
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Yes, I wish I'd thought to read this thing earlier! Makes plenty of things very clear. I have been digging around some more but haven't yet been able to find any other interesting revelations. But of course, the thing is huge! Will keep posting as I find things.

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Old 12-04-2012, 01:04 PM
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thanks for sharing TS..


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Old 03-27-2013, 12:02 PM
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Quote:
Originally Posted by Adventuress View Post
And this is Section 46, as referred to in the previous post, which is the part that relates specifically to those tourist visa applicants that have an Australian partner:
If you don't mind me asking, where do you find this information?

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Old 03-27-2013, 12:43 PM
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Hi, details in first post - you can probably access the law database at an Australian university library. It takes a lot of digging to find the relevant information, but you can get there. If when you go to Australia you're able to access it, send me a PM and I'll help direct you through it to find the PAM3.

Actually I just remembered that some Australian universities have access to information about UK law, so you might be able to find a university in the UK that has access to information about Australian law.


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Old 03-27-2013, 12:50 PM
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Quote:
Originally Posted by Adventuress View Post
Hi, details in first post - you can probably access the law database at an Australian university library. It takes a lot of digging to find the relevant information, but you can get there. If when you go to Australia you're able to access it, send me a PM and I'll help direct you through it to find the PAM3.

Actually I just remembered that some Australian universities have access to information about UK law, so you might be able to find a university in the UK that has access to information about Australian law.
Thats great - thank-you. I am a student with an Australian Uni so I will check their online library.

Is it up to date?

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Old 03-27-2013, 12:52 PM
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I should say so, it's a major law database with offices overseas, and I do remember seeing a note about recently updated information when I looked at it a little while ago.

If you're with a major university I'd bet you definitely have access through their online resources!


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