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Confused. Please help!


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Old 07-27-2013, 08:40 AM
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Hi!
I'd like someone to assist me further with more information about sponsoring my partner from overseas. It would be much appreciated

my partner overstayed his visa for almost 4 years in australia and he was detained and was sent to a detention centre after he was randomly caught by the police patrolling at a train station. We tried to waive the condition 8503 (no further stay) but the immi case officer refused it so he went back to his country by signing voluntarily last year. He left Australia on the 13th dec 2012.

Anyways, I just recently paid the amount of money my partner owed to the Australian government. So that means his name on the system has been removed, therefore he may be able to come back to Australia after the 1 year ban. We've decided to lodge the papers a month before the 1 year ban but the thing is he is still legally married but separated (for 4years). we are trying to figure out if he can file a divorce in Australia when he is here. (Because Annulment in the Philippines is too expensive and the process is too long).

If I sponsor him as a spouse (defacto) - offshore.. The case officer from the immi department won't look at the marriage part.. Right?

& What I understand from reading the information on the immi website says that he can file a divorce if he intends to live here permanently or I, the sponsor is an Australia citizen. We also have a baby together so we have an evidence that we are in a relationship and have a few supporting evidence aswell.

I'll quote what it says about the divorce.

"I married overseas – can I get a divorce in Australia?
If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
are an Australia citizen by birth or descent
are an Australia citizen by grant of an Australia citizenship
ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You must provide the Court with a copy of your marriage certificate."

Can someone explain to me if he can file a divorce in Australia cause I don't quiet understand the quote above.

I'd like to also mention that he has an affidavit from a lawyer to show proof that he is separated with his previous wife but not legally divorce yet.

So what is the best way to sponsor him permanently?

Apply for visitor visa for 12 months? Then file a divorce then we can apply for prospective marriage/spouse (defacto) visa onshore or something?
Or
spouse (defacto) visa offshore then file a divorce then prospective visa?

Lastly, I want someone to explain to me what the paragraphs about under the heading "consequences of being removed"

Is he banned for 1 year or 3 years?

Confused. Please help!-image-2809544588.jpg

Please and thank you.


Last edited by 26777; 07-27-2013 at 08:43 AM.

  #2 (permalink)  
Old 07-27-2013, 10:08 AM
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Quote:
Originally Posted by bemmy.x View Post
Hi!
I'd like someone to assist me further with more information about sponsoring my partner from overseas. It would be much appreciated

my partner overstayed his visa for almost 4 years in australia and he was detained and was sent to a detention centre after he was randomly caught by the police patrolling at a train station. We tried to waive the condition 8503 (no further stay) but the immi case officer refused it so he went back to his country by signing voluntarily last year. He left Australia on the 13th dec 2012.

Anyways, I just recently paid the amount of money my partner owed to the Australian government. So that means his name on the system has been removed, therefore he may be able to come back to Australia after the 1 year ban. We've decided to lodge the papers a month before the 1 year ban but the thing is he is still legally married but separated (for 4years). we are trying to figure out if he can file a divorce in Australia when he is here. (Because Annulment in the Philippines is too expensive and the process is too long).

If I sponsor him as a spouse (defacto) - offshore.. The case officer from the immi department won't look at the marriage part.. Right?

& What I understand from reading the information on the immi website says that he can file a divorce if he intends to live here permanently or I, the sponsor is an Australia citizen. We also have a baby together so we have an evidence that we are in a relationship and have a few supporting evidence aswell.

I'll quote what it says about the divorce.

"I married overseas – can I get a divorce in Australia?
If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
are an Australia citizen by birth or descent
are an Australia citizen by grant of an Australia citizenship
ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You must provide the Court with a copy of your marriage certificate."

Can someone explain to me if he can file a divorce in Australia cause I don't quiet understand the quote above.

I'd like to also mention that he has an affidavit from a lawyer to show proof that he is separated with his previous wife but not legally divorce yet.

So what is the best way to sponsor him permanently?

Apply for visitor visa for 12 months? Then file a divorce then we can apply for prospective marriage/spouse (defacto) visa onshore or something?
Or
spouse (defacto) visa offshore then file a divorce then prospective visa?

Lastly, I want someone to explain to me what the paragraphs about under the heading "consequences of being removed"

Is he banned for 1 year or 3 years?

Attachment 122

Please and thank you.
Hi. Welcome to the forum!

I don't know the answers to all of your questions but I'll fill in the parts that I do know. You can apply for a de facto partner visa if you meet the other criteria even while one of you is legally married. So the fact that he is not yet divorced will not impact your ability to apply for a 309/100 (offshore) or 820/801 (onshore) de facto visa application as long as you can demonstrate that he is separated from his partner and now in a de facto relationship with you. You cannot apply for a prospective marriage visa (300) because he is not free to marry seeing as how he is still married to another person and polygamy is illegal in Australia.

From the quote you posted above I believe he can apply for a divorce after he has resided in Australia for one year if he intends to stay permanently in Australia. Typically other government bodies don't classify being 'resident' in Australia as rigidly as immigration does (for example, what the ATO considers a resident for tax purposes).

Given the fact that he over stayed a visa and stayed illegally in Australia for four years and only left because he was caught, arrested, and deported I would say it is highly unlikely he will be granted any type of visitor visa and pretty much impossible for him to get a 12 month visitor visa (these are difficult to get under normal circumstances, especially from a high risk country).

So, to wrap it up I think your best course of action is a 309/100 if you are eligible for it. Or if he is willing to get a divorce in the Philippines you could look at a PMV. Whatever you decide I highly suggest you consult with a MARA registered migration agent because his history with overstaying will definitely raise a red flag with the DIAC. Best of luck with whatever you decide to do.

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Old 07-27-2013, 10:10 AM
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Hi Bemmy.x.
The second last paragraph of the letter from immigration states if your partner has overstayed his previous visa for more than 28 days he is prohibited from entry back to Australia for a period of Three years. You have some huge problems to overcome and cost as you will need a visa agents assistance.

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Old 07-27-2013, 10:10 AM
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And in my opinion (I'm absolutely NOT a migration expert) the ban is three years because he was removed more than 28 days after his substantive visa expired.

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Old 07-27-2013, 10:14 AM
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Correct Whitney

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Old 07-27-2013, 10:21 AM
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Quote:
Originally Posted by bemmy.x View Post
Hi!
I'd like someone to assist me further with more information about sponsoring my partner from overseas. It would be much appreciated
my partner overstayed his visa for almost 4 years in australia and he was detained and was sent to a detention centre after he was randomly caught by the police patrolling at a train station. We tried to waive the condition 8503 (no further stay) but the immi case officer refused it so he went back to his country by signing voluntarily last year. He left Australia on the 13th dec 2012.
Anyways, I just recently paid the amount of money my partner owed to the Australian government. So that means his name on the system has been removed, therefore he may be able to come back to Australia after the 1 year ban. We've decided to lodge the papers a month before the 1 year ban but the thing is he is still legally married but separated (for 4years). we are trying to figure out if he can file a divorce in Australia when he is here. (Because Annulment in the Philippines is too expensive and the process is too long).
If I sponsor him as a spouse (defacto) - offshore.. The case officer from the immi department won't look at the marriage part.. Right?
& What I understand from reading the information on the immi website says that he can file a divorce if he intends to live here permanently or I, the sponsor is an Australia citizen. We also have a baby together so we have an evidence that we are in a relationship and have a few supporting evidence aswell.
I'll quote what it says about the divorce.
"I married overseas – can I get a divorce in Australia?
If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
are an Australia citizen by birth or descent
are an Australia citizen by grant of an Australia citizenship
ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You must provide the Court with a copy of your marriage certificate."
Can someone explain to me if he can file a divorce in Australia cause I don't quiet understand the quote above.
I'd like to also mention that he has an affidavit from a lawyer to show proof that he is separated with his previous wife but not legally divorce yet.
So what is the best way to sponsor him permanently?
Apply for visitor visa for 12 months? Then file a divorce then we can apply for prospective marriage/spouse (defacto) visa onshore or something? Or spouse (defacto) visa offshore then file a divorce then prospective visa?
Lastly, I want someone to explain to me what the paragraphs about under the heading "consequences of being removed"
Is he banned for 1 year or 3 years?
Please and thank you.
A raft of issues with your situation......
As I understand from your post:
Once he is divorced from his wife and the re-entry ban has expired he can then apply for a defacto visa with you as sponsor.
The debt to the AU government has already been paid.

Divorce from his Philippine partner:
Some problems there to sort out.....
It states that divorce obtained by a Filipino citizen abroad is not valid in the Philippines.
See the link:
Antidivorce law looms in 16th Congress | Inquirer News

Re-entry period:
Provide he has no criminal record and has not deliberately lied to immigration then there is a chance for you....
You can also appeal on compassionate grounds - e.g. you have a child together...
Otherwise he could be excluded for 3 years as he overstayed by more than 28 days - and was working???
See the text.....
http://www.google.com.au/url?sa=t&rc...49784469,d.dGI

Partner visa:
Unlikely he would be considered for a visitor visa.....history of overstaying.
But - you will be free to apply for a partner visa directly his exclusion period is ended.....
Just have to sort the divorce out first....immigration will look closely at that situation......

It is a complex situation and this is my opinion.....you may want to consult a professional migration agent for advice.

Hope this helps.

Good luck.

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From the Kingdom of Cambodia to Australia.......

Last edited by robboat; 07-27-2013 at 10:27 AM.

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Old 07-27-2013, 07:51 PM
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Robboat - Whitney is correct. You do not have to be divorced (only separated, with evidence of that) to apply for a defacto visa with another person.

__________________
Original Nationality: US
Visa #1: PMV (300) through Washington, D.C
Applied: April 2013.
Visa Granted: January 2014.
Visa #2: Subclass 820 (From PMV).
Applied: End of April 2014.
Visa Granted: Early July 2014.
Visa #3: 801 (PR)
Eligibility Date: End of April 2016 (Applied a month prior).
PR Granted: Early April 2017.

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Old 07-27-2013, 11:26 PM
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With all due respect collegegirl and Whitney if I was a CO I am sure I wouldn't be granting a 309 to an applicant that was still married in another country. I would suggest that matter be sorted first.

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Old 07-27-2013, 11:42 PM
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Rigs, this information has come straight from registered migration agents on this site. It's the law. Do some searching around the site and perhaps you'll find it. If you don't like the law, I understand, but it is the law.

__________________
Original Nationality: US
Visa #1: PMV (300) through Washington, D.C
Applied: April 2013.
Visa Granted: January 2014.
Visa #2: Subclass 820 (From PMV).
Applied: End of April 2014.
Visa Granted: Early July 2014.
Visa #3: 801 (PR)
Eligibility Date: End of April 2016 (Applied a month prior).
PR Granted: Early April 2017.

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Old 07-27-2013, 11:48 PM
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Here's a great thread on the topic that shows you the law:

http://www.australiaforum.com/visas-...confusion.html

(Posts from multiple MARA-registered migration agents/migration lawyers in that thread confirming what Whitney and I have said as well.)

__________________
Original Nationality: US
Visa #1: PMV (300) through Washington, D.C
Applied: April 2013.
Visa Granted: January 2014.
Visa #2: Subclass 820 (From PMV).
Applied: End of April 2014.
Visa Granted: Early July 2014.
Visa #3: 801 (PR)
Eligibility Date: End of April 2016 (Applied a month prior).
PR Granted: Early April 2017.

Last edited by CollegeGirl; 07-27-2013 at 11:50 PM.

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