Background of the Partner Visa Case
This case involved a complex journey for the Client, who sought to secure a partner visa to remain in Australia with her Australian Sponsor. The Client first arrived in Australia on a visitor visa in 2014, extending her stay to explore the country further. In early 2015, she met her Australian Sponsor, and by March of that year, they had moved in together as a de facto couple. In June 2015, they lodged an onshore Partner Visa (subclass 820/801) application, with assistance from another law firm.
However, significant issues arose during the application process that complicated the case. While the Client and her Australian Sponsor initially applied as a de facto couple, they decided to marry in October 2017, during the visa application’s processing. Under Australian partner visa law, applicants must meet relationship criteria both at the time of application and the time of decision. Since they lodged their application as a de facto couple, they were required to demonstrate a minimum of 12 months in a de facto relationship at the time of application. Alternatively, they could qualify for an exemption by either registering the relationship or presenting compelling and compassionate reasons.
Unfortunately, the previous law firm representing them did not meet these requirements:
- No Waiver of the 12-Month Requirement: At the time of application, the law firm did not seek to waive the 12-month requirement on compassionate grounds, nor did they register the relationship prior to the marriage, which made registration impossible afterwards.
- Inadequate Advice and Representation: The firm lacked the specialised knowledge of partner visa law, particularly regarding the effects of the Clients’ marriage on their de facto status. As a result, they were unable to effectively represent the Clients in the Administrative Appeals Tribunal (AAT) hearing held in July 2023. While the AAT ultimately recognised the genuineness of their relationship, it upheld the refusal due to the unmet de facto relationship requirement at the time of application. By this point, the Client was on a Bridging Visa A, which was set to expire in August 2023, with limited options to lawfully remain in Australia.
Strategic Analysis and Solution for the Partner Visa Application
Upon taking on the case, we conducted a thorough review of the Clients’ situation and devised a solution to overcome the challenges left by their initial representation. We identified three potential options:
- Option 1 – Judicial Review
- We explored the possibility of a judicial review to challenge the AAT’s decision. Our focus was on arguing that the Tribunal may not have fully considered compassionate grounds for waiving the 12-month de facto requirement, given the unique circumstances of the Clients. If successful, the judicial review could provide the Client with a Bridging Visa A, allowing her to stay in Australia lawfully while the case proceeded through the court. Although this option had potential, it was not the most comprehensive solution.
- Option 2 – New Partner Visa Application
- We considered the option of the Client leaving Australia before her Bridging Visa A expired and then returning on a visitor visa, allowing her to reapply for the partner visa onshore. However, given her extended stay in Australia, this option carried a significant risk of a visitor visa refusal, which could result in a lengthy separation of up to 29 months while the offshore partner visa processed.
- Option 3 – Combined Approach: Judicial Review & Offshore Partner Visa Application
- Our recommended course of action was a combined approach that incorporated a judicial review with an offshore partner visa application. Under this strategy, the Client would lodge a judicial review, which would allow her to obtain a new Bridging Visa A, providing lawful status within Australia. She could then apply for a Bridging Visa B to travel overseas. While offshore, she would lodge a new partner visa application, supported by thorough documentation to meet the relationship requirements. Upon her return to Australia on her Bridging Visa B, she would then obtain a bridging visa linked to her new application, allowing her to stay lawfully until a decision was made on her new partner visa.
Outcome of the Partner Visa Strategy
The combined strategy proved to be both effective and efficient. By initiating the judicial review, the Client received a Bridging Visa A, allowing her to remain lawfully in Australia. We then obtained a Bridging Visa B, enabling her to travel overseas briefly to lodge the new offshore partner visa. Upon her return to Australia, she was granted a bridging visa attached to her new application, permitting her to stay while awaiting the Department’s decision.
Furthermore, we leveraged additional provisions within migration law to benefit the Clients’ case. By successfully claiming the “long-term partner relationship” provision, we were able to secure a direct permanent partner visa for the Client, bypassing the mandatory two-year waiting period. This provision accelerated the pathway to permanent residency, providing stability and certainty to the Clients.
This solution not only resolved the legal complexities arising from the initial application but also ensured that the Clients could continue building their lives together in Australia without the risk of forced separation.
Key Takeaways
The Clients’ case highlights the importance of thorough case preparation and strategic expertise in handling complex partner visa applications. By recognising the gaps left by the Clients’ previous representation and leveraging both judicial review and a new visa application, we achieved a favourable outcome that secured the Clients’ future in Australia. This case demonstrates our commitment to creative, compassionate, and effective legal solutions, even in the face of significant procedural challenges.
For prospective clients facing similar challenges with partner visa applications, Kris Ahn Lawyers provides dedicated expertise to help navigate the complexities of Australian migration law. Our team has a proven track record in resolving difficult cases, including those impacted by procedural issues or relationship status changes. We invite you to explore more of our successful case studies and resources:
- Successful Partner Visa Grants: Subclass 820 and Subclass 309
- Case Study: An Offshore 309 Partner Visa
- Australian Partner Visa for Family Violence Victims
- 801 PR Partner Visa Through a Family Violence Claim
- Grant of Partner Visa Despite Unlawful Status
- Regulations for Partner Visa Facing Family Violence
- Australian Partner Visa for Victims of Family Violence
- 801 Partner Visa Application Amid Family Violence
- Say No to Domestic Violence
- Prospective Partner and Partner Visa Changes
- Visa Holders Domestic and Family Violence Support
For more personalised guidance and support, book a consultation with Kris Ahn Lawyers to discuss how we can help you overcome your unique immigration challenges and move forward with confidence.
Disclaimer: Not Legal Advice
The information provided in this blog post/article is for general informational purposes only. It does not constitute legal advice or create a representative-client relationship. While we strive to provide accurate and up-to-date information, the content may not reflect the most current legal developments or specific circumstances.
Do not rely solely on the information presented here – but please book in a consultation with us to see how you this information applies to you and may benefit you. Any reliance on the material in this post is at your own risk.
Australian immigration law is arguably one of the most complex laws in Australia. Seek professional legal advice tailored to your individual needs before making any decisions based on the content of this post.
