LML6002 - Australian Migration Law: Course Overview and Key Insights

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Subject Name : Australian Migration Law

Why Was Achariya’s Partner Visa Application Invalid?

The Partner Subclass 820 and 801 (onshore), 309 and 100 (offshore), and visas are intended for those who are the spouses or de facto partners of Australian citizens, Australian permanent residents, or eligible New Zealand citizens and who wish to enter and remain in Australia permanently.

The main prerequisite for Partner visas is that the visa applicant must be related to their sponsored partner "spouse- or de facto" in order to qualify. Observe the commentary on "Spouse and de facto partner."

Both applicants who are onshore and offshore must go through two stages before receiving a permanent visa. The initial evaluation of applicants is done in accordance with the requirements for temporary visas even when they simultaneously apply for permanent and temporary visas. The onshore Subclass category consists of Subclass 820 (Partner) (Temporary) and Subclass 801 (Partner) (Residence). According to section 338(2) of the Migration Act 1958 (Cth) (the Act), a decision to refuse to award a Subclass 820 and 801 visa is one that can be reviewed under Part 5. If the visa applicant is onshore when they submit their request for review, they have standing to do so. ^{^[1]}According to section 338(2) of the Migration Act 1958 (Cth) (the Act), a decision to refuse to award a Subclass 820 and 801 visa is one that can be reviewed under Part 5. If the visa applicant is onshore when they submit their request for review, they have standing to do so.

For these applications: Section 5(1) of the Act defines "spouse" as follows. It stipulates that the definition of "spouse" in section 5F applies. A person is only another person's spouse when those two persons are legally wed, according to Section 5F of the Act.

Reg 1.15A of the Regulations Contains Further Considerations.

The term "de facto partners" is specifically defined in Section 5CB of the Act, and further requirements and factors are outlined in Regulations 2.03A and 1.09A.

However, these definition has three exceptions such as death, Child, and domestic violence.

Achariya’s Partner Class UK/BS Subclass 820 Visa Application is Due to the Following Reasons:

Expired Visa: It has been over 6 months since the expiration of Ms. Achariya’s FA Visitor Subclass 600 visa when her agent applied for the partner visa application. Generally, applicants must have a legitimate substantive visa in hand at the time of application in order to be considered for a partner visa. Her application for a partner visa would have been null and void from the start as her tourist visa had already expired.
Breakdown of marriage/ relationship: During her session, Achariya disclosed that her partnership had irretrievably fallen apart and that her boyfriend no longer desired to sponsor her. In Australia, spousal or de facto relationships that are sincere and still present are typically the basis for partner visas. The application may be ruled invalid if the relationship ends or is no longer real at the time of the application.
Medical Condition: Although Achariya's damage to her hand was not specifically cited as a factor in invalidation, it may have had some bearing. It might have had a role, depending on how serious her condition was and whether it prevented her from submitting the required paperwork or attending the interview for the visa.

The most frequent question in Subclass 820/801 Visa cases is whether the visa applicant satisfies the criteria that he or she is the spouse or de facto partner of the applicable Australian citizen, permanent resident, or eligible New Zealand citizen.

Can Achariya Apply for a Medical Treatment Class UB Subclass 602 Visa?

A Medical Treatment Visa is a visa that allows a potential applicant to travel to Australia or people who are in need of a certain sort of medical treatment to travel to Australia and stay in Australia for a specific time. It is also given to the person who assits or supports their family member who is in need of medical treatment. It is also applicable to the person who wants to denote an organ to someone else. This visa allows the specific person to travel to Australia as many times as he wants only if his visa is valid. This visa has been proven to be very beneficial for people who have no recourse to any sort of medical treatment in their own country therefore, it allows such a person to travel to Australia, stay in Australia as long as he is under treatment, and even under consultation of the specific doctor.

Achariya may be able to make a valid application for a Medical Treatment Class UB Subclass602 visa, depending upon various factors:

Medical Condition: Achariya’s urgent medical condition as per her physician to not travel anywhere during treatment. Four of her right-hand fingers were severed, necessitating continuing medical care and rehabilitation; this would probably qualify as a compelling medical necessity.
Inadequate medical treatment in Cambodia: There is copious medical documentation proving that the necessary care and specialized knowledge are not reasonably available in Cambodia. This includes reports from her attending physicians as well as proof of talks with medical professionals
Financial Constraints: Achariya must show that she has the financial means to pay for her medical care, living expenses in Australia, and any other connected charges. This is due to the Medical Treatment Visa's inability to grant access to Australia's universal healthcare system.
Character certificate: Achariya should meet the eligibility criteria and should be holding good health and character. Her character certificate should show that she is not engaged in any sort of crime, she does not pose a threat to the community, she is not a member of any terror community, she has not escaped from any sort of detention, and further has a genuine intention to temporary stay in Australia just for her medical treatment purposes.
Genuine transitory Entrant Requirement: Achariya would also need to persuade the Department of Home Affairs that her aim in applying for the Medical Treatment visa is genuine and transitory, and she does not intend to use it as a means to stay in Australia for an extended period of time-related with charges.
No Further Stay Condition: it is critical to determine whether the "No Further Stay" condition (Condition 8503) was included on her prior Class FA Visitor (subclass 600) visa. If so, she might have to ask for a waiver of this stipulation in order to qualify for the Medical Treatment visa.

Submission to the Minister: Regulatory Requirements for Achariya's Subclass 602 Visa Application

Application for ministerial intervention can be made in a proposed manner and the submissions should be in accordance with the Minister’s guidelines. A letter in support of the application is the preferred way to make a reference to the ministry. Practitioners while writing to the ministry should consider letters, and documents, and determine the condition and relationship of the client appropriately. Effective ministerial intervention may include reference to the AAT, requesting the grant of a particular visa, and ensuring the minister that all the relevant documents and supporting letters have been attested and annexed. Submission can also be made of the existence of exceptional and compassionate circumstances such as the client suffering from such a vulnerable disease, the client suffering from extreme family conditions, mental agony, being left by her husband, and her psychological and physical constraints. Generally, ministerial interventions are only granted in two circumstances firstly, in case of exceptional or unique circumstances, and secondly, when all other relevant conditions are satisfied or met. Our client’s case, or Achariya’s case is a clear-cut example of an exceptional or unique circumstance where her doctor has strictly advised her not to travel beyond Australia because of her medical condition. Achariya’s case also satisfies other conditions such as she was on a valid visa prior to the expiry Partner’s Visa. ^{^[6]}She has also made an application for the renewal of her visa but after 6 months she came to know that her visa application was refused because her previous sponsor i.e., her husband has now refused to sponsor her. Moreover, her marriage has also broken down irretrievably. This shows that she made a valid application when her marriage was in force but due to a change in circumstances, her application has been denied.

Below is the format of how an application can be addressed to the ministry to request the ministry to consider Achariya's miserable condition even without any fault on her part and therefore, kindly request them to issue the medical visa.

Subject: Submission on behalf of Achariya Chea to Redress the Restrictions on Achariya’s Disability to Make a Valid Application for Medical Treatment Class UB Subclass 602 Visa.

Dear Sir,

I am writing this on behalf and at the request of Ms. Achariya Chea, who is a citizen of Cambodia but is currently residing in Australia on a Class FA Visitor subclass 600 Visa. I request you to kindly acknowledge and consider the restrictions that are hampering her eligibility to apply for a Medical Treatment Class UB Subclass Visa.

Ms Achariya Chea’s condition is much worse. She is in possession of a visitor visa that has been expired for six months (Class FA Visitor subclass 600). Her prior immigration agent submitted a Partner Class UK/BS Subclass 820/801 visa application on her behalf, but it was later determined to be ineligible because of the collapse of her marriage. Ms. Chea's right hand has lost four of its fingers as a result of a catastrophic hand injury. Due to the necessity for additional care and rehabilitation so that she can regain movement in her hand, her plastic surgeon has advised against not to travel anywhere.

We understand that Ms. Chea may have challenges in submitting a legitimate application for a Medical Treatment Class UB Subclass 602 visa given her expired visiting visa, the "No Further Stay" limitation, and other pertinent circumstances. However, we humbly request your consideration on the following points:

Ongoing medical condition: The seriousness of Ms. Chea's medical condition needs continual care and rehabilitation. In order to secure her complete recovery and the return of her hand's functionality, her treating physician attested to the requirement of medical care in Australia.
Inadequate Medical Treatment in Cambodia: We are able to present copious medical documentation proving that the necessary care and specialized knowledge are not reasonably available in Cambodia. This includes reports from her attending physicians as well as proof of talks with medical professionals.
Extraordinary Circumstances: We argue that Ms. Chea's case meets the criteria for an extraordinary circumstance that justifies giving it some thought. She is in a precarious and upsetting situation because of her medical condition and the dissolution of her relationship.
Waiver of "No Further Stay" Condition: In light of Ms. Chea's exceptional circumstances, we sincerely ask that the "No Further Stay" condition (Condition 8503) affixed to her expired visiting visa be waived or disregarded. Her situation would make it too difficult to implement the condition.

We duly understand and appreciate the immigration provisions and respect the fact that these regulations and policies are designed to maintain the integrity of the visa system. But we request you to please follow a pragmatic approach and consider her worse medical and mental condition; on the basis of humanitarian and medical grounds please consider Chea’s case as an exceptional case and grant her a Medical Treatment Class UB Subclass 602 visa.

Please review this application, take into account the exceptional circumstances outlined here, and consider using your discretion to allow Ms. Chea to apply for a Medical Treatment Class UB Subclass 602 visa, which would give her the chance to get the necessary medical care and rehabilitation.

If more information or documentation is needed to assess Ms. Chea's case, we are ready to supply it. The distressing circumstances she currently faces would be substantially reduced by your kind intervention in this case.

Unless otherwise specified, all references to legislation are to the Migration Act 1958 (Cth) (the Act) and Migration Regulations 1994 (Cth) (the Regulations) currently in force, and all references and hyperlinks to commentaries are to materials prepared by Migration and Refugee Division (MRD) Legal Services.

Generally, the two-stage processing rule operates for ongoing relationships through a requirement that a person hold a provisional or temporary partner visa, and that at least 2 years have passed since the application for that visa was made: cls 100.221(2)(c), .801.221(2)(d). Also see cls 100.221(2A)(c), 801.221(2A)(c).

The definition of ‘spouse’ in s 5F was amended with effect from 9 December 2017 by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) to include same-sex relationships. Before this change, s 5F(2)(b) required parties to ‘have a mutual commitment to a shared life as husband and wife to the exclusion of all others’. This meant that same-sex couples previously could only be granted a Partner Visa on the basis of satisfying the definition of ‘de facto partner’ in s 5CB.

Australian Government, ‘Department of Home Affairs’Medical Treatment visa https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/medical-treatment-602

Sch 2, Migration Regulations 1994.

Nathan Wills, Manfred Ewikowshi, Tom Kershaw, ‘Ministerial intervention in migration matters: A process not a platform’ June 2020, Issue 158 Precedent https://visaassist.com.au/publications/2020-06-25-ministerial-intervention.pdf