File Note of Legal Research Re-Client Issue

Answer 1 and 2:
File Note of Legal Research
re client issue
FILE NAME:
FILE REFERENCE:
DATE:
AUTHOR:
1. The issues that have to be discussed in the present case of Andrew and
Jasmine are that whether they are eligible to apply for a new onshore Partner
visa in Australia and what can be the results of not making a visa application
in a valid manner in the light of the Migration Act 1958(Cth). As per section
46(1)(d)(i)1, if anyone’s visa application got refused, then that person will be
facing the section 48 bar for making new visa application.
Section 48, the Migration Act2 can be considered to be one of the most
important and common type of legislative limitations. In order to make it effective,
few conditions must be applied to a person before he becomes subjected to section 48.
Those conditions are that the person shall not be a citizen, must be within the
migration zone, shall not hold any kind of substantive visa and after his last entry to
Australia, got his application of visa refused either on character grounds or got the
application got cancelled due to incorrect information in the application.
1 Migration Act 1958 s 46(1)(d)(i).
2 Ibid s 48.

The persons subjected to section 483 can only apply for limited types of visas
that are contained in Regulation 2.124 and include Onshore Partner visas under reg.
2.12(1)(a)(b)5 of the Act and other types of visas. Persons whose visa application got
cancelled or refused in the past but now holding a substantive visa however are not
subjected to this section.
An application for a visa if valid under the Section 296 of the Migration Act
will allow a non- citizen to travel as well as to enter and stay in Australia. Any person
must apply for visa according to the provisions of the Act under section 45 of the Act.
Sections 457 and 468 of the said Act, regulations 2.079and 2.1010 of the
Division 2.2 and Schedule 1 of the Regulations provide a scheme which shows the
essentials of a valid application of visa for every kind of visa. An application of visa
is said to be valid when the application for a particular class of visa is made on the
approved form specified for it and such form is completed according to the
instructions present on such form. The application further must comply with the
requirements specified in Schedule 1 of the Regulation, that includes lodging the
application in the proper location and the applicant is also in the place provided by the
Regulations. Moreover, the application must include a valid residential address of the
applicant and it must include the adequate Visa application charge called the VAC as
specified in Schedule 1 of the Regulations. An application that does not comply with
these requirements is an invalid application. If an application is found to be invalid,
3 Migration Act 1958 s 48.
4 Migration Regulations 1994 - REG 2.12.
5
Ibid Reg. 2.12(1)(a)(b).
6 Migration Act 1958 s 29.
7 Ibid, s 45.
8 Ibid, s 46.
9 Migration Regulations 1994 - REG 2.07.
10 Ibid, REG 2.10.

then the bridging visa which was granted to the applicant with that application will
also cease to exist within 28 days from the date of invalidity is notified.
Again, Schedule 1, item 1214(3)(a)11 provides that for class BS subclass 801
visa, its application must be made during the same place and time of the application of
Class UK subclass 801. Again as per Schedule 1 item no 1224B(3)(e)(i)12, if any
applicant is attracted by section 48, he can apply if his previously refused visa was a
partner visa.
As per the facts of the given case, Andrew and Jasmine both applied for
Partner visa which was refused last week. Andrew was granted a permanent Skilled
Independent Sub-class 189 visa whereas Jasmine is on bridging visa that she got in
connection with the application of Partnership visa.
Though they are not married but they have lived together for last 2 years and
thus they want to apply for permanent visa because of their defacto relationship.
From the discussion made above, it is seen that she is subjected to sections 46
and 48 of the said Act. As per section 4613, she is subjected to section 48(1)14. So she
cannot apply for onshore visa. In spite of having a bridging visa, it is not a substantive
visa as per section 5.
The onshore partner visa is allowed under reg. 2.1 (1)(a)(b)15 of the section 48
of the Act. Thus she can application for partner visa of class UK & BS. But she failed
to satisfy the criterion given in class BS subclass 801. Further, she does not satisfy
criteria of sch 1 item no 1224B(3)(e)(i)16. Due to all these reasons, she cannot lodge a
valid onshore visa however if she leaves Australia, then she will not fall under section
48. Thus she can then apply from offshore.
11 Migration Regulations 1994 Schedule 1, item 1214(3)(a).
12
Ibid item 1224B(3)(e)(i).
13 Migration Act 1958 s 46.
14
Ibid s 48(1).
15 Migration Regulations 1994 reg. 2.1 (1)(a)(b)
16 Migration Regulations 1994 Schedule 1 1224B(3)(e)(i)