Australian Migration Law Analysis: Partner Visa Application - LML6002

This assignment analyzes two legal research file notes concerning Australian migration law, specifically focusing on partner visa applications. The first file note examines Jasmine's situation, addressing her eligibility for an onshore partner visa under the Migration Act 1958 and the Migration Regulations 1994, particularly sections 46, 48, and Regulation 2.12. It explores the implications of her previous visa refusal, the requirements for bridging visas, and the potential consequences of remaining in Australia unlawfully. The second file note delves into the requirements for a valid offshore partner visa (subclass 309/100), focusing on the defacto relationship criteria. It discusses the necessary elements for a successful application, including age, health, character, and financial considerations. The note also analyzes the requirements for defacto relationships, including cohabitation and the impact of temporary separation, referencing relevant legislation and case law like SZOXP v Minister for Immigration and Border Protection and Inco Europe Ltd v First Choice Distribution. The assignment highlights the importance of adhering to the regulations and the potential consequences of non-compliance, providing a detailed legal analysis of the partner visa application process.

Answer 1 and 2:
File Note of Legal Research
re client issue
FILE NAME:
FILE REFERENCE:
DATE:
AUTHOR:
The present case study is to be dealt with in light of the Migration Act 1958
(Cth) and the Migration Regulations 1994. In Australia, visa application made by any
non citizen is dealt under the purview of the said Act. In this assignment, it will be
assessed whether Jasmine can lodge a new onshore partner visa here. Jasmine is
subjected to section 46(1)(d)(i)1 of the said Act. It states that if a visa application is
refused for a non-citizen then that person is to be adjudicated in the light of section
482 of the Act. Section 483 imposes a bar on the person for making application of visa
and allows him to apply only few types of visa. Section 48 imposes conditions like
that the applicant cannot be a citizen, must stay within the migration area, got refusal
of the visa either due to character issues or due to incorrect information in the
application. In this case, as Jasmine’s application of visa got refused, thus she is
comes under the purview of section 48(1)4 that does not allow her to apply visa
onshore. But as per Regulation 2125, she is eligible to apply only some types of visa.
1 Migration Act 1958 s 46(1)(d)(i).
2 Ibid s 48.
3 Ibid s 48.
4 Ibid s 48(1).
5 Migration Regulations 1994 - REG 2.12.

She has bridging visa but it cannot be considered as a substantive visa as per section
56. Now she desires to apply for the partner visa onshore, and she is permitted to
apply this visa as per section Regulation 2.12(1)(a)(b) under section 48. Thus she can
apply for partner visa as per section 46. Section 46(ba) provides that application for a
visa shall be made as per methods given in Regulation 2.07 which states the criteria of
visa application, further Regulation 2.07(1)(a)( c) provides that the required
conditions are given in Schedule 1 and all these must be followed to make a valid visa
application.
Item 1214(3)(a) of Schedule 1 provides that for class BS subclass 801, the
application of visa shall be made at the same place and time along with the visa
application for class UK subclass 801. Hence, Jasmine must fulfil this criterion given
for class BS but unfortunately she did not fulfil the criteria given in Schedule 1 item
1224B(3)(e)(i)7 which clearly points out that where an applicant is subjected to
section 48, she can apply for visa only when her previously refused visa was not a
partner visa. Here Jasmine got her partner visa application cancelled which is
included in Sub item (H) and (K) of sub class 801 and 802 respectively.
Considering all these, she cannot be allowed to lodge visa application
successfully in Australia. However, if she leaves Australia, she will not come under
the purview of section 488 and thus eligible to make valid onshore visa application.
If a visa application is not made by following proper guidelines, then such
application may be either cancelled or refused and after that a bridging visa will be
given to such applicant, in this case to Jasmine, and it will remain valid for 28 days
6 Migration Act 1958 s 5.
7 Migration Regulations 1994 Schedule 1 item 1224B(3)(e)(i).
8 Migration Act 1958 s 48.

from the date of refusal or cancellation of the visa. However within 28 days, if she did
not make any valid visa application, then after the expiry of 28 days, she will be
rendered to be unlawful as per section 14(1)9 which provides the definition of the term
‘unlawful’. Again, as per section 82(2)10, a visa ceases to exist if a substantive visa
comes into existence.
Section 189(1)11 provided powers to an officer of the Immigration department
to detain an applicant, here Jasmine if such officer has knowledge or suspicion that
such applicant is an unlawful as well as a non-citizen of Australia. In such case, she
will be detained until she is departed from Australia or given a visa otherwise
according to section 196(1)(a)(c)12.Moreover, according to section 198(6)13, a person
must be removed as quickly possible when he is a detainee and failed to apply
properly for a visa or the application made is refused and such visa application is
ultimately determined. This shows that the review option available for the application
is being exhausted or the time limit is over during which the application is required to
be submitted as per Part 5 and 7 or the final review result is decided as given in
section 5(9)14.
Jasmine may be allowed an exclusion period for going back or she may not
apply for an offshore visa under schedules 4 and 515 respectively. Unless she leaves
from Australia within 28 days time period after her visa expiry or possess a bridging
visa during her departure, then this time period will not be applied. However, this may
be waived under compassionate and compelling grounds. In addition, if Jasmine
9 Migration Act 1958 s 14(1).
10 Ibid s 82(2).
11 Ibid s 189(1).
12 Ibid s 196(1)(a)(c).
13 Ibid s 198(6).
14 Ibid s 5(9).
15 The Migration Regulations 1994 Schedule 4,5.

carries on staying in Australia as an unlawful non citizen and if she planned to make
visa application onshore, she requires to fulfil criteria given in Schedule 316.
16 The Migration Regulations 1994 Schedule 3.

Answer 3 and 4:
File Note of Legal Research
re client issue
FILE NAME:
FILE REFERENCE:
DATE:
AUTHOR:
For making a valid visa application, the applicant must satisfy the elements
required for applying Offshore Partner visa subclass 309/100 are discussed below.
The applicant must stay out of Australia when applying for the said visa and decision
regarding such visa is to be made. The applicant shall be either spouse or a defacto
partner of an Australian citizen or permanent resident or eligible citizen of New
Zealand for a period of minimum 2 years. Further, she must be of 18 years of age or
more and must satisfy the health and character criteria and must have paid all the
debts to the Government before visa is granted.
For making a valid visa application for a partner visa class UF and Class BBC,
both Andrew and Jasmine are required to prove that their relation comes under the
purview of defacto relation provided under section 5CB17. As per this citizen, the
partners must not be married legally but have a genuine relation between them. The
Immigration Department considers many conditions like cohabitation of the applicant
with partner, social impact of their relation and financial dependency which are given
17 Migration Act 1958 s 5CB.

in regulation 1.09A18. Andrew and Jasmine must satisfy these conditions for proving
their relation to be valid, continuing and genuine. Further they must satisfy the criteria
present in the regulation 1.09A(1)19 regarding defacto relationship before making via
application given in regulation 2.03A20.
As per regulation 2.03A(2)(3)(b)21, Jasmine must be at least 18 years of age
and they must be in defacto relation for at least 2 years before applying for the visa.
Schedule 1, item 1220A(3)(c)22 provides that for class BC subclass 100 visa,
application shall be made at the same place and time along with the application of
Class UF subclass 309. Hence, she must fulfil the conditions laid down in class BC.
As per Schedule 1, item 1129(1) (immi no 18/103)23, both of them must use
the form 47SP (internet) for making visa application manually. Further she must be
paying first instalment as per sub item 1(a)(ii) and the 2nd instalment is zero under sub
item (2)(b). But if they make payment online they will be then charged extra as per
regulation 5.41A24. Here Jasmine can make application online else she is authorised
by the department to use paper form 47(SP) in writing. However, if wrong form is
used by her or wrong payment is made, then such application is considered to be
invalid.
But she will be unable to fulfil the criterion of defacto relation given in section
5CB in sub section (2)(c)(ii)25 as it states that they cannot live separately permanently
as she is planning to stay with her mother for her illness in UK. This can be regarded
as living separately permanently and for this her visa application can be refused.
18 The Migration Regulations 1994 Reg 1.09A.
19 Ibid Reg 1.09A(1).
20 Ibid Reg 2.03A.
21 Ibid Reg 2.03A(2)(3)(b).
22 The Migration Regulations 1994 Schedule 1, item 1220A(3)(c).
23 Ibid Item 1129(1) (immi no 18/103).
24 The Migration Regulations 1994 Reg 5.41A.
25 Migration Act 1958 5CB(2)(c )(ii).

The meaning of the term ‘defacto relation’ is being analysed in detail while
deciding the case of
SZOXP v Minister for Immigration and Border Protection26
in light of the definition given in section 5CB(c)(ii)27 of the Act. The Federal court in
this case emphasised on the fact that the de facto partners are not required to live
together prior to making visa application. In situations where the applicant is able to
meet the requirements of having a mutual commitment to a shared life and that the
relation is genuine and continuing, then she can make visa application in spite of
living separately. In another case of
Inco Europe Ltd v First Choice Distribution28,
three main factors are to be considered which are; statute’s main objective, failure of
parliament and that of the drafting person to give effect of such objective.
The court emphasised that the words of the Act in the concerned section never
say that the applicants must be cohabiting prior to application. The section 5CB(c)29
states that the applicants must not live separately as well as apart from one other
permanently. While interpreting the said section, the court used the literal rue and thus
took out the direct meaning of it. The court held that the direct words do not mean
anything more that the applicant should have cohabited with her partner previously.
The Federal Court also considered the long history of the concerned section
5CB30 given in the said Act. A close perusal of the said section provides that actual
intention of the draftsperson was that to determine whether cohabitation of the
partners whether separately and permanently will depend on various considerations of
the relation. Further, the court also considers whether the separation between the
partners is for reasonable period. Further, interpretation can be done in the light of
26 [2015] FCAFC 69.
27 Migration Act 1958 s 5CB(c)(ii).
28 [2000] UKHL 15; [2000] 1 WLR 586.
29 Migration Act 1958 s 5CB(c).
30 Ibid 5CB.

section 15AA of the Acts Interpretation Act 190131 while making interpretation of any
provision under any Act. It states that the interpretation must be such that it will help
to satisfy the best objective of such provision when stated expressly.
Thus it can be concluded that Jasmine can successfully apply for the partner
visa based on the defacto criterion as per the interpretation by the court.
31 Acts Interpretation Act 1901 s15AA.

References:
Cases:
Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586.
Migration Act 1958
SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69.
Legislation:
Acts Interpretation Act 1901
The Migration Regulations 1994 Reg 1.09A.
The Migration Regulations 1994 Reg 2.03A.
The Migration Regulations 1994 Reg 2.07.
The Migration Regulations 1994 Reg 2.10.
The Migration Regulations 1994 Reg 2.12.
The Migration Regulations 1994 Reg 5.41A.
The Migration Regulations 1994 Schedule 1
The Migration Regulations 1994 Schedule 3.
The Migration Regulations 1994 Schedule 4.
The Migration Regulations 1994 Schedule 5.