Migration Law Report: Partner and Skilled Visas for Kevin

This report analyzes Kevin's immigration situation in Australia, focusing on his eligibility for various visa options. Kevin, an Afghanistan citizen, overstayed his visitor visa and is now in a homosexual relationship with an Australian citizen. The report explores two primary visa pathways: the partner visa (subclasses 820 and 801) and the skilled independent visa (subclass 189). It details the requirements, application processes, and eligibility criteria for each visa, including the need for a bridging visa while his application is processed. The report emphasizes the importance of a genuine relationship for the partner visa and Kevin's qualifications for the skilled visa based on his engineering degree. It also highlights the potential for appealing a visa denial and the availability of legal advice. The report concludes by referencing relevant legislation, case law, and academic sources, providing a comprehensive overview of Kevin's options under Australian migration law.

Running header: Migration Law 1
Migration Law
Subject: Migration Law
(Name, admission number)
(Professor)
(University)
(City, State)
(Date)

Running header: Migration Law 2
1. Kevin’s Current Status
Kevin is an Afghanistan citizen whose first visit to Australia was on 6th December 2019 using a
three-month visitor visa permitting him to attend to an international conference in Melbourne.
The Visa had an 8503 condition attached to it. During this time, Kevin entered into a homosexual
relationship with Stephen.
The migration act 1958 stipulates that when a person’s visa has expired and they remain in
Australia, they are living in the country illegally1. One can apply for a bridging visa which Kevin
did not do. If one has a relationship with an Australian citizen, they can be given application for
a bridging visa to allow them to extend their stay while they plan to apply for the right visa as it
is the case for Kevin (DIBP 2014b). When the stay has gone beyond 28 days, Kevin will be
risking deportation at their cost and they will be banned from visiting Australia in the next three
years. Given that there is a relationship between Steven and Kevin, Kevin cannot apply for an
Australian because he does not want to go back to Afghanistan, Kevin has to become a legal
citizen of Australia. He should, therefore, apply for a bridging visa so that he can get time to
process a substantive visa2.
2.
1 Billings, Peter. "The Future of Law Reform: Simplification of the Migration Act 1958-Submission
to the Australian Law Reform Commission." (2019).
2 Grewcock, Michael. "Punishment, deportation and parole: The detention and removal of former
prisoners under section 501 Migration Act 1958." Australian & New Zealand Journal of
Criminology 44, no. 1 (2011): 56-73.

Running header: Migration Law 3
There are several onshore visa subclasses which Kevin can apply for when in a situation similar
to this one and they include temporary partner visa subclass 820 and permanent partner visa
subclass 801.
Given that Kevin wants to apply for an onshore partner visa, they should be aware that this visa
has two provisions in which a single application caters for both temporary partner visa subclass
820 and a permanent partner visa subclass 801. This application has to be done at the
immigrations department. There are two forms to be filled namely the applicant fills form 47SP
while the sponsor fills form 40SP. After this, the forms can either be send by the post office or
they can be delivered to the immigration department in person.
Once it has been confirmed that the application procedure was done well and all documents
submitted are authentic one will be granted a temporary partner visa subclass 820. This visa will
be held for a period of two years after which a permanent partner visa subclass 801 will be
granted to the applicant. There are some special instances under which one is just granted a
permanent partner visa directly without having to wait for a period of two years while using a
temporary partner visa subclass 820 and they include
a. The applicant has been in a de facto relationship.
b. The relationship has lasted for the last two years and the two in the relationship
have a baby together.
c. If the partner was granted a permanent or a protection visa and the relationship
was in existence before this approval was made.
This is a visa meant for couples where one is an Australian citizen while the other one is a non-
Australian resident. It is aimed at helping the non-Australian resident to reside in Australia. The

Running header: Migration Law 4
visa allows one to stay, work and study in Australia indefinitely (DIBP 2013c). It also allows
one to apply for the citizenship of Australia and even sponsor relatives who meet certain
relatives with a visa to live in Australia.
Kevin and Steven are already living together and therefore this will not be an uphill task for
them. It is not a must for the two to be married since it is given to those in de facto relationships
which includes same-sex marriages (ALRC 2011: 490). One should also prove that they are of
good moral character and good health such that they will not pose a threat to Australia3. Kevin
has no criminal record and he has no health issues which could deter him from obtaining this
visa under Steven’s sponsorship. This visa helps people who are in a genuine relationship or
couple to reunite if one of them is an Australian citizen.
Skilled independent visa subclass 189
This is a visa that is granted to skilled individuals who meet some requirements. This type of visa
does not require sponsorship from an employer, a relative or a state in Australia. It is given to
skilled individuals whose skills are in high demand and the professional skills sort after before
one is granted this visa include electricians, carpenters, engineers, nurses, doctors, and IT
professionals whose age is below 45. The applicant should also possess the ability to speak
English fluently.in this case, Kevin befits this type of visa because he holds a bachelor's degree
in engineering from a UK based university. UK based universities use English as a language of
instruction to their students and therefore Kevin must be a fluent English speaker since he
successfully studied at a UK-based University.
3's BARRY'S CUT RATE STORES INC. v. VISA, INC., No. 05-MD-1720 (MKB)(JO) (E.D.N.Y. Nov. 20,
2019).

Running header: Migration Law 5
The visa will grant Kevin permission to live and work in any part of Australia without
necessarily having to be sponsored by an employer4. Given that no employer is seeking to
sponsor his visa application, Kevin can easily opt for this type of visa and he will get a chance to
keep on living in Australia (ALRC 2011: 490). Because his visiting visa has already expired, he
can apply for a bridging visa which will grant him time to apply and get the skilled independent
visa subclass 189 be processed.
Kevin qualifies for this visa because the requirements which one needs to possess to be granted
this visa include proficiency in English, not older than 45 years old, skills have to be assessed to
confirm that indeed one has skills in the profession mentioned in their application documents,
health requirements, and character requirements. The person's health and character should not be
pausing a threat to Australia5. Kevin meets all these requirements and therefore he will not get a
tough time when he tables his application for a skilled independent visa subclass 189.
Partner visa subclass 801
All the parties in a relationship in which the partner visa subclass 801 is being applied for must
confirm that the relationship is on6. The fact that Steven has escorted Kevin to an immigration
center shows that he is ready and willing to consent that he is in a relationship with Kevin. This
is why the kind and nature of the information they provided at the migrations department shows
that the two have agreed to be in this type of relationship and therefore Steven will not have a
4 Lindsay Lowell, B., and Johanna Avato. "The wages of skilled temporary migrants: Effects of visa
pathways and job portability." International Migration 52, no. 3 (2014): 85-98.
5 Australia, Tourism. "Australia wants you!." (2020)
6 Phillips, Janet, and Harriet Spinks. "Skilled migration: temporary and permanent flows to
Australia." Background Note, December, Department of Parliamentary Services (2012).

Running header: Migration Law 6
problem when it comes consenting that he is in a relationship with Kevin. Once an individual has
been given the partner visa subclass 801, they can sponsor a relative who meets certain
requirements as stipulated by the Australian Law on migration (DIBP 2013c).
If by chance, Kevin’s application is denied there is no need to panic because Kevin has a chance
to appeal for this denial. When an appeal is made one has to prove that they are in a genuine
relationship with an Australian relationship and they will be granted the visa7. In case there is a
denial, Kevin will be free to seek legal advice on the same since the services are readily available
and one will not get it tough when they have support (DIAC 2012). They will, therefore, manage
to get this type of visa.
It should be noted that partner visa subclass 801 is granted to those who hold a temporary partner
visa subclass 820. This happens because one has to be in Australia when placing the application8.
This implies that for the case of Kevin, he can start by applying for partner visa subclass 820
after which they will apply for partner visa subclass 801 which will grant him permanent
residence (DIBP 2014b). One of the requisite requisites for one to be granted this visa is that
they should be in Australia and the second is for them to be in a relationship. 9 This visa can be
granted to a person in a relationship that has not lasted for more than 12 months if you do not
have outstanding debt, you are of good moral standing and you do not have a criminal record
which could rather pose a threat to Australia (ALRC 2011). This type of visa will allow Kevin to
7 People v. Holzer, 2d Crim. No. B293399 (Cal. Ct. App. Feb. 19, 2020).
8 Ho, S. Iimay, and Megan E. Rolfe. "Same-sex partner immigration and the civil rights frame: A
comparative study of Australia, Israel, and the USA." International journal of comparative
sociology 52, no. 5 (2011): 390-412.
9 Birrell, Bob. "Australia’s partner visa program: reform needed." (2019).

Running header: Migration Law 7
live in Australia until they are granted the permanent visa which will be done two years after the
first visa has been granted.
It should also be noted that Kevin's visa has already expired and therefore he needs a bridging
visa which will make him stay in Australia legally as he applies for the partner visa.
Articles, Books and Reports
Birrell, Bob. "Australia’s partner visa program: reform needed." (2019).
Billings, Peter. "The Future of Law Reform: Simplification of the Migration Act 1958-Submission to the
Australian Law Reform Commission." (2019).
Grewcock, Michael. "Punishment, deportation and parole: The detention and removal of former prisoners
under section 501 Migration Act 1958." Australian & New Zealand Journal of Criminology 44, no.
1 (2011): 56-73.
Ho, S. Iimay, and Megan E. Rolfe. "Same-sex partner immigration and the civil rights frame: A
comparative study of Australia, Israel, and the USA." International journal of comparative
sociology 52, no. 5 (2011): 390-412.
Lindsay Lowell, B., and Johanna Avato. "The wages of skilled temporary migrants: Effects of visa
pathways and job portability." International Migration 52, no. 3 (2014): 85-98.
Phillips, Janet, and Harriet Spinks. "Skilled migration: temporary and permanent flows to
Australia." Background Note, December, Department of Parliamentary Services (2012).
Cases
People v. Holzer, 2d Crim. No. B293399 (Cal. Ct. App. Feb. 19, 2020).
BARRY'S CUT RATE STORES INC. v. VISA, INC., No. 05-MD-1720 (MKB)(JO) (E.D.N.Y. Nov. 20,
2019).
Others
Australia, Tourism. "Australia wants you!." (2020).
Stubbs, Matthew T. "Arbitrary detention in Australia: Detention of unlawful non-citizens under the
Migration Act 1958 (Cth)." The Australian Year Book of International Law Online 25, no. 1 (2016):
273-308.

Running header: Migration Law 8
Schedule 1: Eligibility requirements for independent skilled visa subclass 189
To apply for this visa one has to go through these steps.
a. Fill in the application the relevant application forms.
b. One has to complete a skills test to ascertain if they possess the necessary skills
in the mentioned profession.
c. Once the authenticity of information provided has been ascertained then one can
be granted the visa.
Schedule 2: Eligibility criteria for partnership visa subclass 820 and 801
For a person to qualify for a permanent partner visa they should have met the following
requirements:
a. Be holding a temporary partner visa subclass 820.
b. Be in a genuine relationship with an Australian citizen.
c. They must qualify based on the immigration department assessment.