Apply partner visa (onshore) while waiting for AAT review (on protection visa)

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Apply partner visa (onshore) while waiting for AAT review (on protection visa)


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Old 03-27-2020, 10:56 AM
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Apply partner visa (onshore) while waiting for AAT review (on protection visa)

Hi there,
I am looking for some advice for my situation.

My protection visa was refused 6 months ago and I applied for AAT review and I am still waiting for the review. In my protection visa my claims are all genuine and major claim is that my life is in danger and I was on my own.

My circumstances have changed about 2 months ago as I got married in Australia (Australian Citizen) and now I have someone to depend on. (my partner). My life is still in danger and all other claims remain the same.

I would like to get some genuine advice on further steps. Shall I keep waiting for AAT review or is there any way to apply for Partner Visa (On Shore).?

From immigration website it looked like I can apply for Temporary Partner visa (On shore). My partner tried to launch an application for Partner visa (Onshore ) and got the following error message.

An error has occurred
Based on the details provided one of the following issues is preventing this application from continuing:
They have a previous visa cancellation or refusal.
They do not hold an appropriate visa.
They have a condition on the current visa.
Their location cannot be confirmed.
Check the details provided and correct where necessary. The application will not be able to continue and further information about the eligibility for this application is available on our website.


I would like to know if someone has been in similar situation and could shed some light.

Also, since I am on bridging visa (Protection visa) therefore I am not allowed to leave Australia.

I have an agent who helped me with my first application unfortunately, he is not currently in Australia and I am unable to get advice from him at the moment.

I think my agent needs to advice AAT of change in circumstances and withdraw review.

I guess question is after the withdrawal if I will be able to lodge Partner visa (Onshore ) since I won't be on any substantive visa.


I shall be thankful for your advice.
Many thanks,

TheAussie


Last edited by theaussie; 03-28-2020 at 01:20 AM.

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Old 03-27-2020, 01:08 PM
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A first step would be to update your details with the Immigration Department. From the information you posted, they don't know your whereabouts.

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Old 03-27-2020, 03:27 PM
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''One possible way to lodge another visa application while you a waiting for an AAT hearing is to apply while you are outside of Australia. If you are currently holding a Bridging visa A or B, then you may able to apply for a Bridging visa B which allows you to temporarily leave Australia. This may allow you to lodge another visa application with the Department, and then return to Australia on your Bridging visa B and remain in Australia while you wait for your AAT hearing.''
- according to MyAccessAustralia

Also, you can only apply for an onshore partner visa 820/801 if you have a valid substantive visa (any visa except a bridging visa).

Based on your situation, it is best if you get some legal advice.

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Old 03-27-2020, 03:27 PM
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''One possible way to lodge another visa application while you a waiting for an AAT hearing is to apply while you are outside of Australia. If you are currently holding a Bridging visa A or B, then you may able to apply for a Bridging visa B which allows you to temporarily leave Australia. This may allow you to lodge another visa application with the Department, and then return to Australia on your Bridging visa B and remain in Australia while you wait for your AAT hearing.''
- according to MyAccessAustralia

Also, you can only apply for an onshore partner visa 820/801 if you have a valid substantive visa (any visa except a bridging visa).

Based on your situation, it is best if you get some legal advice.

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Old 03-28-2020, 01:07 AM
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Quote:
Originally Posted by Riley View Post
A first step would be to update your details with the Immigration Department. From the information you posted, they don't know your whereabouts.
Thank you for your response. Yes, I have sent an email to my agent and asked him to update Immigration Department.

The bridging visa associated with Protection visa does not allow travel outside therefore I am quite sure that they do have the location set in Australia.

Partner Visa 820 eligibility looks all clear to me.

immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-onshore/temporary-820#Eligibility

According to home affair department, I should be able to apply for Partner visa and Visa refusal should affect.

immi.homeaffairs.gov.au/form-listing/forms/1026i.pdf

immi.homeaffairs.gov.au/entering-and-leaving-australia/entering-australia/can-i-go-to-australia/check-if-visa-cancellation-or-refusal-affects-you

Visa refused or cancelled
You can only apply for a limited number of visas if you do not
hold a substantive visa (any visa other than a Bridging visa or a
criminal justice visa), and:
• you were refused a visa, other than a Bridging visa, on or after
1 September 1994 and since last entering Australia; or
• you were refused an entry permit and became an illegal
entrant before 1 September 1994 and have not subsequently
left Australia; or
• you have a visa that was cancelled on or
after 1 September 1994.
The visas for which you can apply are:
– Special Eligibility (residence)
– Child (residence)
– Partner (temporary)1
– Partner (residence)1
– Protection (see next column)
– Medical treatment (visitor)2
– Territorial asylum (residence)
– Border (temporary)3
– Special category (temporary)4
– Bridging A
– Bridging B
– Bridging C
– Bridging D
– Bridging E
Note: While you can apply for a visa in these circumstances, you
cannot be granted the visa unless you satisfy the relevant criteria
set out in the Migration Regulations.


Look forward to hearing more advices.

Thank you.


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Old 03-28-2020, 01:17 AM
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Quote:
Originally Posted by Cerealthyme View Post
''One possible way to lodge another visa application while you a waiting for an AAT hearing is to apply while you are outside of Australia. If you are currently holding a Bridging visa A or B, then you may able to apply for a Bridging visa B which allows you to temporarily leave Australia. This may allow you to lodge another visa application with the Department, and then return to Australia on your Bridging visa B and remain in Australia while you wait for your AAT hearing.''
- according to MyAccessAustralia

Also, you can only apply for an onshore partner visa 820/801 if you have a valid substantive visa (any visa except a bridging visa).

Based on your situation, it is best if you get some legal advice.
Thank you for valuable input.

Yes, offshore is an option but unfortunately, I cannot go back to my home country because of the threats I have already mentioned. In addition to this my bridging visa does not allow me to go outside.

In regards to substantial visa I think section 48 does not apply if you are applying for Partner visa.

If you are still holding a substantive visa, then you should be able to lodge another visa application – assuming that you meet the relevant eligibility requirements. A ‘substantive’ visa is basically any visa which is not a bridging visa. (from myaccessaustralia)


If you do not hold a substantive visa (i.e. your last substantive visa has expired and you now hold a bridging visa that is associated with the AAT appeal), then Section 48 will bar you from making a further ‘substantive visa’ application because you have had a visa refusal, which is any visa except a Bridging visa, a Criminal Justice Visa or an Enforcement Visa.



Despite Section 48, you can still lodge a valid application for the following types of visas: partner visas, bridging visas, Subclass 444 for New Zealand citizens and child visas.


The above agent's seems to have good knowledge about these sort of things. I will reach out to him for more information.

Does anyone know a good lawyer who handles this sort of visas (as I am unable to get to my agent since my agent is away at the moment)?


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Old 03-29-2020, 02:24 AM
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* The protection visa that you applied for was refused since the immigration did not believe your claim to be a real one. And then you appeal to turn this around but if you withdraw your review before the decision has been made, you will lose the associated bridging visa that comes with it and the outcome of your protection visa application will remain the same and become unlawful.
*If you do this, it will make your situation even more difficult and the genuineness of the applicant might be questioned and your future visa application will likely be refused.

However, if you proceed with your appeal:
• If your AAT appeal is unsuccessful, you may be able to apply to the Minister to personally intervene in your case (referred to as ministerial intervention); or
• If your AAT appeal is unsuccessful, you may be able to have your case heard by the Federal Circuit Court of Australia.
*Section 48 bar applies if you don't have a substantive visa and you:
• since last entering Australia, were refused a visa, other than a Bridging visa
or
• were refused an entry permit and became an illegal entrant before 1 September 1994, and have not subsequently left Australia
or
• had a visa that was cancelled on or after 1 September 1994
*In your case, your protection visa was refused but not cancelled (cancelled visa and refused visa are different).

*Based on your post, the online portal wouldn’t let you proceed with the onshore partner visa application due to your conditions means that Section 48 applies to you. The most likely option that you have is to apply for an offshore partner visa but with the guide of an expert.

*This forum has a sticky thread about RMA, you might want to consult with one of them.


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Old 03-30-2020, 04:49 AM
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Quote:
Originally Posted by theaussie View Post
My protection visa was refused 6 months ago and I applied for AAT review and I am still waiting for the review. I

My circumstances have changed about 2 months ago as I got married in Australia (Australian Citizen) and now I have someone to depend on. (my partner). My life is still in danger and all other claims remain the same.

I would like to get some genuine advice on further steps.
The best advice I can give you is to consult a Registered Migration Agent to see if an onshore partner visa application has any merit. Apart from having to deal with section 48, there will be schedule 3 issues as well.

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