Victoria University Migration Law Assignment: Partner Visa Case Study

This assignment analyzes the eligibility of Andrew and Jasmine for an Australian partner visa, considering the implications of the Migration Act 1958 (Cth). It addresses whether they can apply for a new onshore partner visa, given a previous visa refusal and the section 48 bar. The analysis examines the validity of their visa application, the significance of bridging visas, and the requirements for onshore and offshore partner visas (subclass 309/100 and 801). It also explores the definition of a de facto relationship under the Act, referencing the SZOXP v Minister for Immigration and Border Protection case, and how their relationship is assessed. The document covers the criteria for offshore partner visas, including health, character, and financial obligations, and the consequences of invalid applications, including potential detention and removal. Furthermore, it considers the impact of Jasmine's situation, given her bridging visa status and plans to live separately, on their visa eligibility, and the importance of complying with Schedule 3 requirements. The assignment provides a detailed legal framework for their situation, outlining the requirements, potential obstacles, and pathways available for a partner visa application.

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
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)

valid onshore visa however if she leaves Australia, then she will not fall under section
48. Thus she can then apply from offshore.
2. If a valid visa application is not made properly, then the visa will be refused or
cancelled and the bridging visa granted with it will be valid for 28 days from the
day the applicant will be notified that the application is invalid. If another
application is not made within that period, then after 28 days, the applicant will be
without any valid visa and her stay will be unlawful as per section 14(1)17.
Moreover, section 82(2) says a visa cease to exist if a substantive visa begins to
apply. There lies no right of review for invalid visa application. Under section
189(1)18 an officer has the power to detain Jasmine if they found that she has
turned into an unlawful citizen after her bridging visa gets expired. She will be
detained until she is removed or given a new visa as per section 196(1)(a)(c)19.
Again, as per section 198(6)20, the person shall be removed fast when he is a
detainee and did not make a valid visa application or if made, application is
refused and such application has been terminated, then either the review option is
exhausted or time limit for submitting the application is over under Part 5 and 721
or final decision is reached as review decision under section 5(9)22.
However, Jasmine may be granted with an exclusion period for her return to
Australia or she is unable to make application of new visa offshore for some time as
per Schedule 4 and 523 respectively. In addition to this, if she remained in Australia as
an unlawful citizen and then planned to apply for onshore visa, she is required to fulfil
17 The Migration Act 1958 s 14(1).
18 Ibid s 189(1).
19 Ibid s 196(1)(a)(c).
20 Ibid s 198(6).
21 Ibid s 5,7.
22 Ibid s 5(9).
23 The Migration Regulations 1994 Schedule 4,5.

criteria of Schedule 324.but it will be difficult for her to prove the reason for her
overstaying her visa.
Answer 3 and 4:
File Note of Legal Research
re client issue
FILE NAME:
FILE REFERENCE:
DATE:
AUTHOR:
3. The issues that will be covered within this file note are that whether Jasmine
and Andrew fulfil the requirements required if they want to apply for an offshore
Partner visa subclass 309/100.
The criteria required for applying an Offshore Partner visa subclass 309/100
are as follows;
 The applicant must be staying out of Australia when making application and
when the decision is to be made,
 Applicant must be the de facto partner or spouse of the Australian citizen,
permanent resident or an eligible citizen of New Zealand for atleast 2 years
and must be minimum 18 years of age as per Regulation 2.03A(2)(3)(b)25.
 Applicant must meet the requirements for health and character, and
 All the debts to the Government of Australia are repaid prior to the visa grant.
24 The Migration Regulations 1994 Schedule 3.
25 The Migration Regulations 1994 Reg 2.03A(2)(3)(b).

Defacto relation is defined under section 5CB26 of the Act. There must be genuine
relation between the applicant and the partner. The Immigration Department will
consider various aspects of the relationship as per regulation 1.09A27which include
cohabitation, financial dependence, social impact of the relationship. Usually,
cohabitation is evidenced by showing correspondence addressed to both of them at the
similar address. Financial dependence can be seen by joint bank accounts, property
owned by them jointly, joint commitment in financial matters like mortgages, leases,
insurance policy. Social impact of relationship can be determined from facts regarding
joint travel, social activities, participation in cultural or sporting activities.
Schedule 1, item 1220A(3)(c)28 provides that class BS subclass 100 visa, its
application must be made during the same place and time of the application of visa
Class UF subclass 309. Hence, she did not satisfy criteria given in Class BC.
Sch 1, Item 1129(1) (immi no 18/103)29 states that both of then must apply by
using form 47SP or from internet and also pay the 1st instalment under sub item 1(a)
(ii). The 2nd instalment is not needed as per sub item 2(b). If they make payment by
credit card, there will be a surcharge under Reg. 5.41A30. Thus they can follow these
for making application.
Section 5CB(2)31 of the said Act has no requirement expressly that people
must be living together or have lived together in order to be in a defacto relation. In
the case of Inco Europe Ltd v First Choice Distribution32, three factors to be
considered are intended objective of the statute, the failure of the parliament and the
26 Migration Act 1958 s 5CB.
27 The Migration Regulations 1994 Reg 1.09A.
28 The Migration Regulations 1994 Schedule 1, item 1220A(3)(c).
29 Ibid Item 1129(1) (immi no 18/103)
30 The Migration Regulations 1994 Reg. 5.41A
31 Migration Act 1958 s 5CB(2).
32 [2000] UKHL 15; [2000] 1 WLR 586.

drafting person for giving effect to that objective and the change in the provision that
could be made by the Parliament.
From the facts of the case it is seen that the requirements of the offshore
Partner visa are satisfied by Jasmine and Andrew. Hence they can apply for it. The
conditions are fulfilled by them in the following manner,
 Jasmine must be staying out of Australia, that is in UK, when making visa
application and when the decision is to be made,
 She is more than 18 years of age,
 She must have met the requirements for health and character, and
 All the debts to the Government of Australia are to be repaid prior to the visa
grant.
But she cannot fulfil section 5CB(2)(c )(ii)33, as they are going to live separately
after she left Australia to stay with her mother in UK. It wil amount to living
separately and permanently. On this ground, visa will be refused.
4.
In interpreting the clause ‘defacto relation’, the decision given in SZOXP v
Minister for Immigration and Border Protection34 regarding the phrase “do not live
separately and apart on a permanent basis” in the judgment will also be discussed in
the light of its statutory interpretation.
The court takes into consideration the case of SZOXP v Minister for
Immigration and Border Protection35 to determine the meaning of defacto relation
33 Migration Act 1958 5CB(2)(c )(ii).
34 [2015] FCAFC 69.
35 [2015] FCAFC 69.

under section 5CB(2)(c)(ii)3637. Section 5CB(2)38 of the said Act has no requirement
expressly that people must be living together or have lived together in order to be in a
defacto relation, in such situation all faltmates or friends staying together will be
considered to be in defacto relation39. In the case of Inco Europe Ltd v First Choice
Distribution40, three factors to be considered are intended objective of the statute, the
failure of the parliament and the drafting person for giving effect to that objective.
However none of the 3 factors are considered in the present case of SZOXP v Minister
for Immigration and Border Protection.41
The Federal Court in this case held that the requirement for de facto relationship is
that ‘do not live separately and apart on a permanent basis”. Section 5CB42 of the
Migration Act stated that a person is regarded as the de facto partner of other person
whether of the same sex or different one, if the person even if not married with each
other, if they show mutual commitment to one another, their relation with one another
is continuing and genuine and they are living together or not living separately from
each other permanently and they are not in family relation as there is ambiguity43. As
per the literal rule, the court while interpreting the clause construed to the direct
meaning of it. Moreover, the court also applied the purposive rule to interpret the
phrase by construing to the purpose of the provision whether it was intended to the
people who are in a marriage like relation, then there lies no cause why such people
cannot be in such relation without living together previously44. Thus in this case,
36 Migration Act 1958 s 5CB(2)(c)(ii) at para 13.
37 SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 at para 22.
38 Migration Act 1958 s 5CB(2).
39 SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 at para 24.
40 [2000] UKHL 15; [2000] 1 WLR 586.
41 SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 at para 21.
42 Migration Act 1958 s 5CB.
43 SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 at para 25.
44 SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 at para 23.

minister was basically sort of making his own interpretation to refuse it, so that
judgment overrides the minister's interpretation45.
As per section 15AA of the Acts Interpretation Act 190146, while interpreting
any provision of any Act, that interpretation must be preferred that would achieve the
best purpose or best objective of the Act stated expressly. Similar observation was
found in the case of Project Blue Sky Inc v Australian Broadcasting Authority47.
Thus, Jasmine can lodge a new offshore Partner visa as she can satisfy the
conditions given in it as per the interpretation given by the court in the light of literal
rule and in terms of section 15AA of the Acts Interpretation Act 1901.
45 Ibid para 19.
46 Acts Interpretation Act 1901 s15AA.
47 [1998] HCA 28; (1998) 194 CLR 355, 384 [78].

References:
Acts Interpretation Act 1901
In Raveca Onea v Minister for Immigration [1997] FCA 1472.
Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586.
Migration Act 1958
Migration Regulations 1994.
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998)
194 CLR 355, 384 [78].
SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69.