subclass 309 get rejected. What to do next?

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subclass 309 get rejected. What to do next?


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Old 09-01-2014, 08:01 AM
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subclass 309 get rejected. What to do next?

Hi there,

Me and my partner met in Australia. He is Australian and I am from HK. We were long distance love for years but work allowed me to come over to see him or vice versa. We decided to live together and so we lodged subclass 309 this Feb. While waiting for result, I was in Australia staying with him by tourist visa since then. Recently, we've got the email regarding to the visa and our application has been rejected. We didn't know the 12 months basis is based on days and so we lodged it before we were living together for 365 days and we didn't register our relationship to get exemption for the 12 months basis.

Now I have few questions hope you can help.

1) If lodge offshore, the person has to be offshore when visa is granted. How about if visa get rejected? Cos I am now in Australia by tourist visa and I just got their email last week. I am afraid it causes trouble.

2) We are not putting the case to MRT cos we don't want to waste money and time when obviously we are not living together for 365 days. Can I still lodge again for De facto visa when we hit 365 days?

3) While I am waiting to lodge a new visa, is that possible for me to apply a student visa in Australia (I am having a tourist visa now) ? This makes me very frustrated, cos I have to leave the country on Nov (mine is one year multiple entry visa, but valid for 3 months each entry) and I am afraid immigration will stop me from getting into the country or will have trouble get a student visa as they have my record of subclass 309 being rejected.

4) If I could get a student visa from Australia under tourist visa, am I able to lodge onshore or my student visa will be replaced?

5) This is what I've found from the booklet, I need some clarification please:

If you are applying in Australia, you may not be able to make a valid application or you may not be eligible to be granted a Partner visa, if you:

do not hold a substantive visa and have had a Partner visa refused or cancelled since your last entry to Australia; or

do not hold a substantive visa (see page 6) and your previous visa has ceased; or

hold a visa with a No further stay condition (conditions 8503, 8534 or 8535); or

hold a Sponsored Visitor visa; or

hold a Criminal Justice visa; or

since your last entry to Australia, hold or held a Provisional General Skilled Migration visa and you have not held or did not hold that visa for at least 2 years;

have a debt to the Australian Government and have not made satisfactory arrangements to repay the debt.

Note: If you do not hold a substantive visa and have had a visa refused or cancelled since your last entry to Australia (other than a visa cancellation or refusal on character grounds or a Partner visa refusal), you may be able to make a valid application in Australia as long as you provide a completed
form 40SP Sponsorship for a partner to migrate to Australia (see page 13) and 2 statutory declarations from Australian citizens, permanent residents or eligible New Zealand citizens supporting the existence of your relationship with your sponsor (see page 27).


Does it mean I may not able to apply a partner visa again?

Your kind reply will be much appreciated. I can't believe it is such a horrible thing when visa get rejected. Me and my partner spent the whole weekend doing research and see what can we do next. It's upset.

Thanks for advance.


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Old 09-01-2014, 08:10 AM
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How long had you lived together? How close to 12 months? Yes, they can be very stringent on the 12 month rule, sometimes rejecting people for falling just one day short.

Why not register your relationship (depending on if it's available in your state) and reapply right now, before your visitor visa runs out? You can do that. The information you've copied and pasted doesn't apply to you as you're currently holding a substantive visa. That policy is in place to force people who are in the country illegally to go offshore before applying. I don't believe you have to.

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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).
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Old 09-01-2014, 08:13 AM
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By the way - they can't grant your visa while you're onshore, but I don't think it matters if they're rejecting it.

It'd be much better to just apply for the 820 (you'd be applying for the onshore 820, not the offshore 309) than to go the student visa route. If you get a student visa, you're bound by the terms of it (restricted work rights, have to study & keep up your grades, etc) during the entire 12-15 months of the partner visa being processed. Don't do that to yourself.

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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 09-01-2014, 08:46 AM
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I expect it's highly unlikely you'd get a student visa as you'd struggle to satisfy DIBP that you meet the "Genuine Temporary Entrant" criteria.

Does your visitor visa have a No Further Stay condition?

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Old 09-01-2014, 09:03 AM
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^^Important question.

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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 09-01-2014, 09:03 AM
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I would suggest getting your relationship registered, it will do good for your next application, either 820 or 309. And how long have you guys being living together up to now? This is the most important factor for your next application. Stay together as long as you can, exit when you have to, and come back and continue - for HKSAR passport holders it is convenient to get a electronic tourist visa, it is easier to get and cost much less than a student visa.

BTW, who was your visa officer?


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Old 09-01-2014, 09:26 AM
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The bits you highlighted only apply to people who do not hold a substantive visa. There is nothing stopping you from lodging a new partner visa application. I can't tell if you can apply onshore or not without seeing your current visa conditions and having access to all the relevant information about your relationship.

Because of the previous refusal I suggest you get some professional advice this time, so your application is prepared properly.

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Please note that this posting is of a general nature only. It does not constitute legal or migration advice and may not apply to your particular circumstances.

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Old 09-01-2014, 09:44 AM
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Very sorry to hear about the rejection
I know how it feels to be in that situation, our 820/801 application we submitted in December 2012 was rejected. Our application was rejected because of the lack of evidence to prove that we were in a genuine and continuing relationship. We were misguided by the DIBP officer and so our worst nightmares came true.

My husband and I came offshore and applied again in July 2013 with a huge file packed with evidence to prove that we were and still are in a genuine and continuing relationship. We also wrote and signed a statement explaining what had happened with our previous application as I was worried and confused whether my husband could sponsor for a second offshore partner visa(because of the 5 year waiting period before sponsoring again)

From the information you've shared, you can fix the 12 month (365 days) living together issue and then apply again for 309 or 820. You can as suggested by many seniors, register your relationship to waive the 12-month living together requirement or actually live together for the required time period before you apply.
You can apply for another partner visa, maybe even onshore if you're visitor visa doesn't have condition 8503- no further stay on it.

Hope everything works out for you and your partner. Good Luck!!!
Please keep us updated

Kind Regards,
Becky

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Old 09-01-2014, 12:55 PM
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Thank you very much for all of your replies. I feel better now and after reading your replies, I have a more clear picture.

Me and my partner been physically together for only 1/2 year if counted by days. So either we register our relationship to waive the 12 months period thing or we wait till we are physically together for 365 days.

And you are right, getting a student visa is just spending another thousands of dollars.

My visa has no "No further stay" thing. I can stay in Australia for 3 months, 1 year multiple entry. It's a 601 ETA.

Question
My tourist visa expires in 2015, with a maximum stay each time of 3 months. Can I leave and return to Australia, now my partner visa has been refused? Anyone experienced that before? Cos I think it's better not to lodge straight away after been refused just 2 months time? The case officer may think it's too "unreal" of the relationship? That's what I think. So I have to leave Australia before Nov and come back asap so that I can hit 365 days asap. Then lodge again. So I am worry I would get stopped by the immigration officer and questioned by them.

I read some posts, people lodged onshore when they were here in Australia by tourist visa. Can I lodge a new partner visa on shore 820 or a prospective marriage visa 300, just to reconfirm. Sorry of asking the same question again.

If lodge onshore a new partner visa can I get a bridging visa to stay in Australia ? Think I can get a bridging visa A. Is this correct?

Will defiantly get some professional advice. My visa gonna be very expensive. Sad...


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Old 09-01-2014, 01:00 PM
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You cannot lodge a Prospective Marriage Visa (300) onshore. Those always have to be lodged offshore. If you apply from your tourist visa to an 820 (Partner Visa), yes, you will get a Bridging Visa A that will kick in as soon as your current three-month stay on your tourist visa expires.

It would be quite risky for you to try to leave and re-enter Aus on a tourist visa with a partner visa that has just been rejected. It will be very apparent to them that you are not just a tourist since you've already tried to stay there permanently.

I'm glad your visa has no NFS condition - once again, can you register your relationship in your state? That would allow you to apply before your current stay on your tourist visa runs out, and in my opinion is your best bet. There's no amount of time you need to wait before applying again. You didn't qualify before because your relationship wasn't registered - register it this time, and (as long as you have the evidence you need - shared finances, shared address, etc.) and you'll be fine.

I do agree that in your case it would be good to use a migration agent if that's financially feasible for you.

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__________________
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; 09-01-2014 at 01:03 PM.

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