Legal Research FileNote: Yan Ming- PR-immigration issue

This file note discusses the immigration issue faced by Yan Ming, a citizen of the People's Republic of China, and provides recommendations for a partner visa application. It also addresses the steps and criteria for a valid application for an Aged Parent visa and the eligibility of Sam for a subclass 600 visa.

FileNote of Legal Research
re client issue
FILE NAME: Yan Ming- PR-immigration issue
FILE REFERENCE: YMPR
DATE: XXXXX
AUTHOR: ZZZZZ
The client: Yan Ming
Original citizen: People’s Republic of China
Visa status: Bridging visa A
Period of stay in Australia: 4 years
Original Visa type: subclass 457 visa.
Visa details:
 Filed for subclass 482 Temporary Skill Shortage visa in November 2018
following position offered by the new employer
 Subclass 457 visa expired in December 2018
 The holder of bridging visa A.
Issue: Letter from department of visa refusal for a subclass 482 visa.
Other aspects of the case:
Partner Bruce (Australian citizen) intends to propose marriage to Yan Ming, and
sponsor her for the partner visa
Aspects of the case to be considered:
Section 48, not applicable for the client, as:
 The holder of a substantive visa
 After last entering Australia, was refused a visa (subclass 482 visa refusal)1
 The individual is a holder of BVA with no details of possible employment
 Refusal to address the issue of visa expiry originally
Application
Application of the partner (temporary- class UK) not applicable, since Regulation
2.12(1) notes that the application of visa from within Australian can be applied under
this subclass, if
Section 48 applies to you.2
At present, the individual is with BV, and in order to apply for a partner, visa needs to
prove that they are in a de facto partner relationship3
For this following documents will be needed:
 Documents to prove identity
1Commonwealth Consolidated Regulations, s. 48.
2 Commonwealth Consolidated Regulations: MIGRATION ACT 1958 - SECT 48
3Seekvisa, 2019. Partner visa Australia

 Current passport pages
 Photos
 Proof of change of name if any
 Health documents
 Character documents
 Completed Form 80
 Police certificate
 Application
Factors to be considered will include the
1. Details of relationship such as when, how, what
2. Financial aspects of the relationship4
Present circumstances
At present, the visa application of the client has expired, and they have been granted a
bridging visa (BVA). The individual can apply for a partner visa
Consequences
Applicant:
Need to prove that holder of BVA
Need to prove that in a defacto relationship
Need to provide proof of relation, in the absence of which the status of partner
visa will not be provided
Need to provide proof of ending of original visa, and state reason for the same
State present employment, and if found not applicable, the possibility of
deportation
Partner
Need to provide proof of citizenship
Need to prove that in a defacto relationship
Need to provide proof of relation, in the absence of which the status of partner
visa will not be provided
Can be liable for fraud with the agencies.5
Might face trial or penalty in the event of fraud.
Recommendations
Apply for partner visa if the case genuine
Apply for an original visa (re-application) from outside Australia
Apply for partner visa outside of Australia
Apply for partner or work visa under section 48, since the BVA or any other
visa will not be applicable in this scenario
4 ALI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 121
5 ALI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 121

Part B
 Can Rose make a valid application for an Aged Parent (Residence) (Class
BP) visa? Explain why or why not.
Issue:
In the present case, the sponsoring individual is a resident of Australia, and are in
need of their mother as a candidate for the permanent residency. The parent to be
sponsored will be a contributing member to the family, as the family has four
children, from which one child has been diagnosed with a chronic ailment. At such
time, the introduction of a parent, especially when their own partner is deceased, and
they do not have any particular medical history will be categorized as contributory.6
Rule:
Since Aged Parent (Residence) (Class BP) visa is applicable for non-contributory
family members, this visa will not be applicable in the present scenario. Instead, she
can apply for a contributory parent visa, since, Rose has when an eligible child who is
a settled Australian citizen, and she is old enough to receive the age pension in
Australia7.However, there is another issue, Rose is limited by the condition 8503-
which is a no further stay conditions, which limit the visa holder to apply for
permanent or any other temporary visa after entering Australian territory.8
Application
While ideally this type of addition is based on the visa offer discretion, this can be
6 Thames migration. 2019.Caps for the non-contributory parent, other family visa classes set
7Commonwealth of Australia. 2019. Contributory parent visa subclass-864
8 Migration Regulations 1994, Schedule 8. Visa Conditions.

waived off by specialised request with a supporting submission plus additional
documents to the authorities.9 The application of this waiver can only occur if it can
be proved that the situation of the client changed due to compelling and
compassionate reason, beyond their control after their entry in the country.
Conclusion
Since the waiver 8503 clauses can be applicable here, it is advised that Rose can reach
the authorities for a reconsideration of the case, and contributory parent visa
application.
j. Are there any steps that Rose would need to take to make a valid
application?
Yes, Rose would be expected to prove that her situation changed since the time of her
visit to the country. She would need proof of the documents for the same. She would
also need details regarding the possible reason for the change, medical documents
signifying her health, and the medical documents of the child impacted in the present
scenario.
Based on the facts in the scenario, what is your assessment of whether she may
be able to?
Based on the present situation, it is advocated that the client should be able to get a
waiver on their 8503 situations, and hence should be allowed to apply for a
contributory parent visa. Even as this particular visa has a high waiting period, the
rose will be allowed to stay in the country possibly (if all goes well) and post
discretion of the visa officer regarding the case background and character certificate
9 Immigration solution lawyers, 2019. Visa Condition 8503

and police clearance. It is further noted that the client will be allowed to stay in the
country on a temporary visa based on the present observation. In this context, it is
advocated that the client should be approached for the case.
Part c
Are there any special return criteria that Sam needs to satisfy to be successful in
being granted a subclass 600 visa?
Issue
Sam has been a US citizen with an Australian passport, however, the same was
expired, and despite the same, he continued to live in the country, since he was in love
with a local citizen. When the department raided his place of work he was deported
back to his country. At present, he is applying for visitor visa subclass 600
Rule:
This visa is applicable for the period of 3, 6, 12 months on the basis of access. He can
apply for a tourist application under the visitor visa (subclass 600)10. The client has
overstayed his past stay in the country, and thus needs to address the challenges he
faces in a possible refusal of the visitor visa subclass 600. The items needed for the
successful allocation of visa includes
 Proof of funds
 Proof of travel history
 Previous history of international travel and visa stay
 History of employment, and present status in the country
10Dacey, C. 2017.Migration (IMMI 17/021: Arrangements for Visitor (Class FA) Visa Applications)
Instrument 2017

It is thus possible that the case might get rejected in view of the “any impact on
Australian business and community interests”11
Application
In the present case, there is a possibility that the application of the individual is
declined since the past history of deportation, and the known cause of having a loved
one can become a reason for the client to again overstay their visit. This can have an
impact on the community, employment, healthcare and the housing structure of the
country. As a result, a need to opt for an alternate measure is advocated.
Conclusion
In the present case the client has no history of substantive visa or filing for any other
form of recognition of the challenges. Thus sponsor from a partner is the only
possible solution through which he can re-enter the country.
What advice would you give Sam about his wish to apply for a Visitor visa
subclass 600 visa now and whether he would be eligible based on his history of
having been removed from Australia?
Since the last time Sam was in the country he was deported, and he shared no remorse
for his actions. He also cannot provide proof of any change in circumstance that is
compelling, thus a need to introduce an alternate form of entry such as work-based
visa (where the individual can gain permit in the country through suggesting that he
can contribute to the society).12 Or he can enter the country through sponsorship from
his partner.13 Here he would have to share proof of being interested in marrying the
girl in Australia and hence apply for a permanent partner visa. In this case, he will be
11Australian government. Section 501 of the Migration Act 1958.
12Australian government. 2017.Australia immigration and work visas
13 Australian government. 2017. Family Sponsorship

provided with a temporary sponsorship, and he will be expected to provide proof of
his relation and other such document to ensure his stay in the country.
Would your advice be any different if Sam told you that his girlfriend Kylie
suffers from anxiety depression and since he was removed from Australia last
year she has experienced severe depression and needs Sam in Australia to
support her?
In the event that the special circumstance arises, sam can provide a sponsorship letter
along with the details of the history of the client. This will reflect that the girl has
shown symptoms of the problem, while Sam was in the country and thus his return is
as a contributory member. In this case, the special consideration of compelling case
can be applied.

Reference
Australian government. Section 501 of the Migration Act 1958
Ali V Minister For Immigration &Anor [2018] FCCA 121
Australian government. 2017. Australia immigration and work visas
Australian government. 2017. Family Sponsorship
Commonwealth of Australia. 2019. Contributory parent visa subclass-864
Commonwealth Consolidated Regulations, S. 48.
Commonwealth Consolidated Regulations: MIGRATION ACT 1958 - SECT 48
Dacey, C. 2017. Migration (IMMI 17/021: Arrangements for Visitor (Class FA) Visa
Applications) Instrument 2017
Immigration solution lawyers, 2019. Visa Condition 8503
Migration Regulations 1994, Schedule 8. Visa Conditions.
Seekvisa, 2019. Partner Visa Australia
Thames migration. 2019. Caps for non-contributory parent, other family visa classes
set