Migration Law

This document provides advice on Reethi's visa options for permanent residency in Australia. It discusses the eligibility criteria and different visa subclasses available, such as the Subclass 820 Partner Visa (Temporary) and Subclass 801 Partner Visa (Permanent). It also explains the concept of bridging visas and their eligibility criteria. The document concludes with information on the prospects of success for Reethi's visa application.

Running head: MIGRATION LAW
Migration Law
Name of the Student
Name of the University
Author Note

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To: Reethi and Roman
From: Registered Migration Agent
Subject: Advice on Reethi’s visa options
Considering the given information on Reethi Kumar, aged 22, a citizen of India,
living in Australia for a period of two and half years in spite of being allowed in Australia on
the subclass 600 visitor visa which did not have the 8503 condition that restricted further
stay. Her application of Class XA subclass 866 Protection Visa was rejected 8 months back
by the Department of Home Affairs, to which she applied for a review with the
Administrative Appeals Tribunal which is still in process. Her marriage to Roman Fitzgerald
makes it easier for her to get the permanent resident status in the country, however it would
be necessary for her to achieve a proper visa for her status of permanent resident in Australia.
There are certain subclasses of visa that would be available for her to apply for the Australian
permanent resident in the country. They are:
1. Subclass 820 Partner Visa (Temporary)
It is a temporary visa which actually links the applicant to the permanent partner visa.
It is necessary for the applicant to be present in Australia while applying for this subclass
visa. An applicant must be married or a de facto partner of an Australian Citizen or an
Australian permanent resident. This visa cost AUD 7,160 for general applicants and AUD
1,195 for the subclass 300 Prospective Marriage Visa holders. The processing time for this
visa is around 21 months for 75% applicants and 28 months for 90% applicants1. This visa
would let the applicant live, study and work in Australia while his/her permanent visa is in
the process of approval. It does not comes with any visa condition that restrict the applicants
from any activity.
1 Immi.homeaffairs.gov.au, "Subclass 820 Partner Visa (Temporary)", Immi.Homeaffairs.Gov.Au (Webpage,
2019) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-onshore/temporary-
820#Eligibility>.

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There are certain eligibility criteria that must be fulfilled by the applicant, which are as
follows:
 The visa is subject to the proof that the relationship shared by the applicant with
his/her spouse is genuine who is a citizen of Australia. The applicant needs to prove
that he/she and her spouse is living together and that their marriage is valid as per the
Australian law. It is important eligibility criteria for the applicant to be granted the
temporary visa initially and then the permanent one subsequently2.
 The applicant must have a Sponsor which is usually the spouse who would support
the applicant financially; however the sponsor cannot be changed and he/she should
be the same person when this visa would be granted.
 The applicant must be 18 or older to prove his/her marital status.
 The applicant must meet the health requirement necessary for the grant of any visa in
Australia along with the character requirement as held under the Migration Act 19583.
 It is extremely crucial that the debt of the Australian Government held by the
applicant or his/her family member must be paid back or arranged to be paid back.
2. Subclass 801 Partner Visa (Permanent)
It is a permanent visa and only granted to the subclass 820 Temporary Partner visa
holder. The visa is subject to the proof that the relationship shared by the applicant with
his/her spouse is genuine who is a citizen of Australia. The applicant needs to prove that
he/she and her spouse is living together and that their marriage is valid as per the Australian
law. The applicant must have a Sponsor which is usually the spouse who would support the
applicant financially; however the sponsor cannot be changed and he/she should be the same
person when this visa would be granted. The fees of this visa is taken at time of the
2 Immi.homeaffairs.gov.au, "Subclass 820 Partner Visa (Temporary)", Immi.Homeaffairs.Gov.Au (Webpage,
2019) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-onshore/temporary-
820#Eligibility>.
3 Migration Act 1958, s501.

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application of the temporary partner visa. 75% of the applications are allowed after a
processing time of 20 months and 90% application in 26 months4. Once the Permanent
Partner Visa is granted, the applicant would be eligible to stay in Australia for an indefinite
period along with studying and working in the country. The applicant would be eligible to
enrol in any public healthcare scheme in Australia. He/she shall be allowed to travel to and
from Australia for 5 years. Lastly, the applicant shall be eligible to apply for Australian
citizenship eventually. The applicant would be allowed to include his/her dependent child
along with his/her permanent partner visa5. The child must hold a Dependent Child Visa
(subclass 445) and must be present in Australia at the time of applying it. The child, if over
16 years must meet the character requirement as stated under the Migrations Act 19586. The
debt of the Australian Government held by the applicant or his/her family member must be
paid back or arranged to be paid back.
This is the most appropriate visa for Reethi as she complies all the above mentioned
eligibility criteria. As her subclass 600 visa did not have a 'no further stay' condition of 8503,
she would not be penalised under the Migrations Act 1958 for not having a valid visa for so
long after her subclass 600 visa expired.
Bridging Visa
In this situation while she applies for the Temporary Partner Visa subclass 801 and
the Immigration Department keeps it under process, Reethi can look for certain Bridging
Visas which allow applicants to stay in Australia for a temporary period while their current
substantive visa application is under process7. There are four different bridging visas in
Australia.
4 Immi.homeaffairs.gov.au, "Subclass 801 Partner Visa (Permanent)", Immi.Homeaffairs.Gov.Au (Webpage,
2019) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-onshore/permanent-
801#About>.
5 Ibid.
6 Migations Act 1958
7 Immi.homeaffairs.gov.au, "Subclass 010 Bridging Visa (BVA)", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
<https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/bridging-visa-a-010#About>.

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1. Bridging Visa B or BVB
2. Bridging visa C or BVC
3. Bridging visa E or BVE
Bridging visas help applicants to hold a temporary stay in Australia until their
substances visa is being processed by the Ministry Of Home Affairs. Each one of these
bridging visas has different eligibility criteria which make them unique and different from
one another.
Bridging visa A (BVA)
It is a temporary visa and is applied while the substantive visa of the applicant is
being processed and the applicant needs a certain visa to continue his stay in Australia. It
would be essential to apply for a separate BVA when the applicant did not apply for a
bridging visa along with his application for the substantive visa8. A separate bridging visa
application is also necessary when the applicant looks for work in Australia without any work
restrictions under the BVA. Moreover an applicant would have to apply for a separate
bridging visa when his substantive visa is under judicial review. However, an applicant
cannot apply for a bridging visa while he waits for his application for citizenship in Australia.
Under bridging visa, the applicant would be eligible to work in Australia depending on the
conditions that are applied to the bridging visa. An applicant whose substantive visa has been
refused by the Ministry of Home Affairs and subsequently such refusal has been up held by a
Merit Review Tribunal, in that case the applicant shall be eligible to apply for judicial review
along with an application for a bridging visa for maintaining his lawful status in Australia
while the judicial review proceeding is being carried out. Bridging Visa A can be considered
to be the most appropriate bridging visa for Reethi for the time being.
8 Immi.homeaffairs.gov.au, "Subclass 010 Bridging Visa (BVA)", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
<https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/bridging-visa-a-010#About>.

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With the help of this Bridging Visa A, the applicant shall be eligible to stay in
Australia until his application for a substantive visa is determined or approved by the
tribunal. However this bridging visa will be over if the applicant leaves Australia or his
application for substantive visa has been granted. The Bridging Visa A shall cease to operate
when the application of substantive visa is refused by the Ministry of Home Affairs. The
BVA shall be revoked as soon as the decision of the judicial review is declared for the
applicant or he himself withdraws his application for the judicial review for substantive visa.
However, this visa is not extendable and shall be subject to the application for a new visa
when it cease to exist9.
As for the general rules of all four bridging visas, these are generally free of cost;
however they require the applicant to be present in Australia when they make the application
for it and the Ministry grants it. The processing time of the bridging visas are not available
and it may take a long time for the department to process it in case the applicant fails to
provide all the necessary information correctly or if he fails to who provide all the documents
asked for. In addition, it takes a longer period of time for the Ministry to verify the accuracy
of the information and document provided by the applicant. The applicant of the bridging
visas would have certain obligations which include the compliance of the Australian laws
along with the conditions of the visa that the applicant currently holds and also the
compliance with the conditions of the bridging visa when it is approved. In addition, the
applicant must note that there are certain restrictive conditions which are applied to all the
bridging visas that restrict the applicants from carrying out certain activities while their
substantive visas are under process. Some of the restrictive conditions are 8101 (no work),
8102, 8104, 8105, 8107, 8108, 8111 (work limitation), 8303 (character requirements), 8501
(health cover).
9 Ibid.

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The prospects of success pertaining to the approval of the subclass 820 temporary
partner visa and subsequently subclass 801 permanent partner visa cannot be confirmed as
the case is quite complex and it needs critical evaluation of the current medical condition of
the applicant. Even though the applicant lacks several criteria which needs to be fulfilled for
being granted a substantive visa in Australia, her present medical condition which does not
allow her to be moved elsewhere, could be taken into consideration by the Ministry of Home
Affairs. As prescribed by the doctor that she requires complete bed rest and constant
observation, it would be difficult to carry out any kind of enquiry against her which would
require her to be present before the investigating authority. Hence, there are high chances that
her bridging visas would be approved for the time being so that she could deliver her baby
safely without being disturbed. However, after the critical period is over for Reethi, the
bridging visa may be removed by the authority by delivering the pending judicial review
decision. The standard processing time for the bridging visa is not specified however the
recommended subclass 820 temporary partner visa is usually granted within 28 months for
90% applications10. As for the subclass 801 permanent partner visa, it takes 26 months for
90% of the applications to get approved11. Certain additional information about the
applicant who have helped the migration agents to frame more accurate prospect of success
of the applied substantive visa, like her character and health requirement documents, her job
description and detail documents on the financial independence of the applicant or any
supportive document that states the dependency of the applicant on her sponsor.
10 Immi.homeaffairs.gov.au, "Subclass 820 Partner Visa (Temporary)", Immi.Homeaffairs.Gov.Au (Webpage,
2019) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-onshore/temporary-
820#Eligibility>.
11 Immi.homeaffairs.gov.au, "Subclass 801 Partner Visa (Permanent)", Immi.Homeaffairs.Gov.Au (Webpage,
2019) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-onshore/permanent-
801#About>.

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Bibliography
Legislation
Migration Act 1958
Websites
Immi.homeaffairs.gov.au, "Subclass 010 Bridging Visa (BVA)", Immi.Homeaffairs.Gov.Au
(Webpage, 2019) <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/bridging-
visa-a-010#About>
Immi.homeaffairs.gov.au, "Subclass 801 Partner Visa (Permanent)",
Immi.Homeaffairs.Gov.Au (Webpage, 2019) https://immi.homeaffairs.gov.au/visas/getting-a-
visa/visa-listing/partner-onshore/permanent-801#About
Immi.homeaffairs.gov.au, "Subclass 820 Partner Visa (Temporary)",
Immi.Homeaffairs.Gov.Au (Webpage, 2019) <https://immi.homeaffairs.gov.au/visas/getting-
a-visa/visa-listing/partner-onshore/temporary-820#Eligibility>