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Ask Mark! 2019 Thread - Page 3


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  #21 (permalink)  
Old 12-18-2018, 08:15 AM
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Hi Shamtah -

Thanks for the question. The bottom line is: no way to predict. With DHA trying to refuse people citizenship for multiple traffic offences, the idea of breaching an agreement with a state sponsorship authority is not so far-fetched as it might have seemed some years ago. I'm not aware of any attempts to refuse citizenship based on a breached state sponsorship agremeent (which is usually a civil agreement you make with the state vs any sort of condition on your visa), but that doesn't mean it hasn't or won't happen.

My best advice in these situations is to conduct an extremely thorough job search and document every single step of it to build a thick file describing how you made a good faith effort to find a job in your sponsoring state/regional area in your profession. If in the future DHA brings up the early exit from your sponsoring state, the detailed job search records may be helpful. After completing the job search and before you depart the sponsoring state, you might also consider requesting a "release letter" from the state - most don't provide these, but in the face of a good faith but unsuccessful job search you might get lucky, In any case, the job search file is probably the best evidence you could use if later on you are the subject of DHA allegations that your character has issues due to leaving the sponsoring state early.

Hope this helps -

Best,

Mark Northam



Quote:
Originally Posted by shamtah View Post
Hi Mark,

I have immigrated to Australia a year ago on a Skilled nominated (subclass 190) visa.I am working now in a temporary job(for 4 months) in my profession till the end of this month and I have been searching for another job during this period but I could not find any in my state of nomination(The ACT).

Am I allowed to apply for a job in another state and can I work outside the ACT in case I have a job offer in another state without affecting my chances in getting the citizenship in the future?

Thank you and have a merry Christmas.

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  #22 (permalink)  
Old 12-18-2018, 08:25 AM
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Hi Bariscan90 -

Thanks for the questions - please see my responses at *** after your questions below:


Quote:
Originally Posted by bariscan90 View Post
Hi Mark,

Thank you for the opportunity for letting us ask you questions. I have a few questions I would like to ask.

The government has changed the layout of their website and I can no longer find the information I used to find before.
*** Join the club. The new website is a mess and all the broken google search links only make it worse. In the end the new website may be better, but I'm not seeing important things that used to be there. Same for the "new" visa grant letters that don't bother to put the date of visa application on them - that's important info for partner visa applicants who need to calculate 2 years from the original application date.

I am planning to apply for the 801/820 visa. I cannot find any information regarding to the bridging visa which is given when the current visa runs out. Where did this information go? Have they removed the bridging visa for 801/820 visa?
*** Thankfully no. If you apply onshore and there are no factors that interfere with that application (ie, condition 8503, PIC 4020, etc etc) and assuming you hold a substantive (non-bridging) visa at the time you apply for the onshore partner visa, you would normally be granted a Bridging Visa A with full work rights - the BVA would activate as soon as your substantive visa expired on its own (ie, expired on the original expiry date of that visa).

Will there be any confirmation that a bridging visa will be put into effect before the applicant's current visa expires?
*** No, see above - a bridging visa always sits "underneath" a non-bridging (also called substantive) visa. However with the onshore partner visa application you should get a Bridging Visa grant letter that evidences grant of the visa and lists the conditions etc of the visa.

Is there an up to date version of the partner migration booklet which we can download?
*** Not that I know of, however that might be a blessing in disguise as the old one was terribly outdated.

For the passport photographs the applicant is asked to have their name printed on the back of the photo. Do they mean the name to be printed on the back by a printer or written down by hand?
*** Other than for citizenship applications, passport photos submitted with paper applications need to have the person's name written on the back (handwriting with Sharpie etc fine). If you are lodging an electronic visa application online such as a partner visa and most other visas these days, there is no need to write anything on the "back" as a digital scan of the passport photo with the person's name in the filename is fine.

Is a health check required or should it only be done if asked?
*** Depends on the visa being applied for. Check the visa requirements carefully. For a couple such as the 485 you may have to provide evidence of a medical exam or appointment for medical exam at time of application. For many others including partner visas, it's generally safe to wait until DHA requests the exam so you don't get it too early and have your exam expire (12 months duration) prior to the visa being decided by DHA.

I am required to serve in the army in my home country. However, I had postponed my military service for two years starting from the 10th of March 2016 and ending on the 10th of March 2018. My postponement has now expired. In this circumstance, do I need to provide any documents regarding to the status of my military service?
*** In my view, yes. You won't have a completion of military service document to lodge, but I would explain your current military service obligation(s) if any to DHA and show that it has expired. You may want to add information to your statement/letter about military service re whether you may have any ongoing or future obligations going forward - that's thei concern with this as well.

.How many photographs shall we upload in regards to proving our de-facto relationship? We heard not to upload more than ten photographs. Is that advisable?

*** Depends on the quality of the photos, but my thought is 10 is too few. I'd look for 20-40 over the life of the relationship, perhaps arranged in photo albums so each page can have 2 to 4 photos on it with captions you add to show who/what/where etc for each photo.

Thank you.
Hope this helps -

Best,

Mark Northam

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LLB, GradDipLaw, GradCertMigrLaw, BBA(Acctg) MARN 1175508
Northam Lawyers http://nlaw.com.au [email protected]
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  #23 (permalink)  
Old 12-18-2018, 10:55 AM
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Medical check

Hi Mark.

I was wondering if you could give me your point of view.
My plan was to do my health assessment 6 months after lodging 820, to see if things speed up. (the rest of the application is front loaded). What is your opinion on this. Or should we wait until requested as then we will know when our case is being looked at.
Thanks in advance!


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  #24 (permalink)  
Old 12-18-2018, 11:23 AM
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Hi Mark,

Couple questions if that's okay

Are offshore defacto partner visa applicants able to apply for a visitor visa (subclass 600) sponsored family stream while the offshore defacto partner visa is being processed? Is this a common path? My partner was denied a tourist visa recently (deemed risk of overstaying) so don't think we will be able to apply from within Australia?

And also for a defacto partner visa application, does the couple need 12 months of continual cohabitation before the application? I am currently in Australia after living with my partner overseas for the previous 6 months and we have been living together for 12 months but not continuous yet!

Thanks in advance, Laurens


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  #25 (permalink)  
Old 12-18-2018, 11:46 AM
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Hi Underthesun -

Thanks for the note. If the rest of the application is front-loaded (including all police certificates for sponsor and applicant), then I'd probably lean towards doing the health 6 months in, in hopes that when the application does get taken up by a case officer/team, they'll see that everything is done and perhaps expedite things, or at least skip a couple of internal queues, etc.

Hope this helps -

Best,

Mark Northam


Quote:
Originally Posted by Underthesun View Post
Hi Mark.

I was wondering if you could give me your point of view.
My plan was to do my health assessment 6 months after lodging 820, to see if things speed up. (the rest of the application is front loaded). What is your opinion on this. Or should we wait until requested as then we will know when our case is being looked at.
Thanks in advance!

__________________
Mark Northam
Immigration Lawyer and Registered Migration Agent

LLB, GradDipLaw, GradCertMigrLaw, BBA(Acctg) MARN 1175508
Northam Lawyers http://nlaw.com.au [email protected]
Co-Host, Coming 2 Oz video show: http://coming2oz.com.au

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  #26 (permalink)  
Old 12-18-2018, 11:53 AM
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Hi Laurens -

Thanks for the questions! Yes, trying a sponsored family stream sc600 can be a successful strategy as long as everyone meets all the requirements, however I've seen more than a few cases where doing the sponsored stream didn't make any apparent difference re: genuine temporary entrant criteria. However, I think it's worth a try if that's the only option you have left to try and spend some time together.

Re partner visa living together requirement, the requirement if you have not registered your de facto relationship with the Australian state you live in (which automatically satisfies the 12-month requirement - check the regulations for more on this) is that you have been in the relationship as de facto partners for at least the 12 months prior to the date of application. If you were not living together for the entire 12-month period, you should be able to show how the relationship continued at a de facto level despite whatever break(s) there were. Whether the living together during those 12 months was in Australia or elsewhere, that's not really an issue - it's all about the relationship evidence to show a partnership that is far beyond boyfriend/girlfriend, roommates, travel companions, etc.

Hope this helps -

Best,

Mark Northam


Quote:
Originally Posted by laurensvds View Post
Hi Mark,

Couple questions if that's okay

Are offshore defacto partner visa applicants able to apply for a visitor visa (subclass 600) sponsored family stream while the offshore defacto partner visa is being processed? Is this a common path? My partner was denied a tourist visa recently (deemed risk of overstaying) so don't think we will be able to apply from within Australia?

And also for a defacto partner visa application, does the couple need 12 months of continual cohabitation before the application? I am currently in Australia after living with my partner overseas for the previous 6 months and we have been living together for 12 months but not continuous yet!

Thanks in advance, Laurens

__________________
Mark Northam
Immigration Lawyer and Registered Migration Agent

LLB, GradDipLaw, GradCertMigrLaw, BBA(Acctg) MARN 1175508
Northam Lawyers http://nlaw.com.au [email protected]
Co-Host, Coming 2 Oz video show: http://coming2oz.com.au

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  #27 (permalink)  
Old 12-18-2018, 12:12 PM
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Quote:
Originally Posted by MarkNortham View Post
Hi Emily -

Thanks for the question. Schedule 3 is enlivened for onshore partner visa applications if at the time of application the visa applicant holds only a bridging visa (any type of bridging visa) or no visa at all. The important parts of Schedule 3 (of the Migration Regulations 1994 (Cth)) are 3001, 3003 and 3004. If you lodge your partner visa within 28 days of holding a substantive visa, you can make a claim to meet the various elements of 3001 which include among other things, ceasing holding a substantive (non-bridging) visa for reasons beyond your control.

However for onshore partner visas there is another route if you do not meet 3001 or lodged more than 28 days after you last held a non-bridging visa. That is the overall "compelling reasons" waiver provision for the entirety of Schedule 3 provisions - compelling reasons can represent a challenging requirement since the word "compelling" has no agreed-upon meaning - it means for the most part whatever the decision maker decides it means.

So even if you can't meet 3001 due to not being able to establish reasons beyond your control, there is for the 820/801 visa application an overall waiver also available. Not easy to satisfy, but it can be done in many cases.

A big question for next year - with the new legislation "splitting" the partner visa into a sponsorship application and a visa application - where the visa application we expect can only be applied for once the sponsorship application is approved - will they keep Schedule 3 or remove it....?? Huge question with wide-ranging ramifications.

You may want to consider a consultation with an immigration lawyer or migration agent to help better understand chances of success with a Schedule 3 waiver if you are considering that - but regardless of what the agent/lawyer may say - there's a huge amount of differences in decision in this regard because everybody's idea of "compelling" is different. I do quite a few Schedule 3 cases and trying to predict the outcome can be challenging to say the least.

Hope this helps -

Best,

Mark Northam
Hi Mark, again thank you for your information. We submitted the application within the 28 days as our CO for my now expired 461 visa advised us to do this. I talked with her on the phone and she put me on hold and then came back saying she had spoken with the 820 team and they advised to lodge within the 28 days. After reading a lot of posts on here I can see now that its probably not the best to take advice from DHA.

Many thanks for your help Mark, have a fantastic Christmas.


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  #28 (permalink)  
Old 12-18-2018, 12:21 PM
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Hi Emily -

Agreed - it can be hazardous to rely on immigration advice from DHA, as they're not even supposed to be providing that and wouldn't be responsible for whatever advice they may choose to provide.

Lots of people get tripped up on Schedule 3 re partner visas - don't feel bad - other than lack of relationship evidence, Schedule 3 refusals (for 820/801 applications) are the most frequently seen.

You might chat with a few migration agents or immigration lawyers and get some feedback on potential Schedule 3 compelling reasons candidate reasons to consider as you look at putting together your Schedule 3 waiver.

Hope this helps -

Best,

Mark Northam



Quote:
Originally Posted by Emily j View Post
Hi Mark, again thank you for your information. We submitted the application within the 28 days as our CO for my now expired 461 visa advised us to do this. I talked with her on the phone and she put me on hold and then came back saying she had spoken with the 820 team and they advised to lodge within the 28 days. After reading a lot of posts on here I can see now that its probably not the best to take advice from DHA.

Many thanks for your help Mark, have a fantastic Christmas.

__________________
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Immigration Lawyer and Registered Migration Agent

LLB, GradDipLaw, GradCertMigrLaw, BBA(Acctg) MARN 1175508
Northam Lawyers http://nlaw.com.au [email protected]
Co-Host, Coming 2 Oz video show: http://coming2oz.com.au

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  #29 (permalink)  
Old 12-19-2018, 04:36 AM
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801 Application process

Hi Mark,

Thank you for providing an opportunity to ask questions.

I just today received my email notification from Immi to say that I can now submit information for my permanent stage of my partner visa (801).

The issue is - there was no time-frame letting me know when I have until to apply for this part of the Visa. Obviously, I have some evidence to compile and I need to get things in order.

I originally lodged for the 820 PV on 19/01/2017, this was granted on 25/01/2018, and I suppose the 2 years from lodgement would be 19/01/2019. How long after the 19th January 2019 am I safe to apply by? E.g. if i was to apply by 19th February, would this be too late?

Thank you for your help,

Matt


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Old 12-19-2018, 04:58 AM
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Hi Matt -

Thanks for the question. There is no prescribed time limit in the regulations for how long past the 2 year mark they will allow before they have concerns - I've seen people do it several months past the 2-year mark without any issue. Based on what I've seen, I would think that 4 weeks would not be likely to cause an issue.

Hope this helps -

Best,

Mark Northam



Quote:
Originally Posted by blonded.solo View Post
Hi Mark,

Thank you for providing an opportunity to ask questions.

I just today received my email notification from Immi to say that I can now submit information for my permanent stage of my partner visa (801).

The issue is - there was no time-frame letting me know when I have until to apply for this part of the Visa. Obviously, I have some evidence to compile and I need to get things in order.

I originally lodged for the 820 PV on 19/01/2017, this was granted on 25/01/2018, and I suppose the 2 years from lodgement would be 19/01/2019. How long after the 19th January 2019 am I safe to apply by? E.g. if i was to apply by 19th February, would this be too late?

Thank you for your help,

Matt

__________________
Mark Northam
Immigration Lawyer and Registered Migration Agent

LLB, GradDipLaw, GradCertMigrLaw, BBA(Acctg) MARN 1175508
Northam Lawyers http://nlaw.com.au [email protected]
Co-Host, Coming 2 Oz video show: http://coming2oz.com.au

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