Msm007

Hi

My husband and I have been together for 5 years, we have a house in Australia, have lived in Australia for 18 months when he was on his temporary visa (I have an Australian passport), family there etc.

We've now been told that as it is time to apply for his permanent visa we will more than likely be rejected because we have been out of Australia (in the UK traveling) for the last 2 years. I didn't realise that he had to be in the country the entire time (or not out of the country for a limited time). Does anyone have any suggestions as to what we should do now?

1. Go ahead with the visa application even though we've been told it probably will be refused (and maybe have to pay the hefty fee of $1400 for an appeal?)

2. Leave the application to expire so that he doesn't get his permanent visa and apply for another temporary visa - as we will be moving back to Australia at the end of this year and will be living there full time - therefore, more than likely he will get his permanent visa easily next time around.

I dont want to waste time and money - but not sure which is the best route to take.

Thanks so much!!

Pollyana

Are you referring to the temp/PR Spouse visas?
If so, as far as I know there is no clause that says you have to be in Australia. Wo told you that you would be rejected? I would be talking to a registered agent before you go any further.

Msm007

Yes it is. We had a defacto visa (temporary) and since then we've been married and living together (18 months in Oz and 2 years in UK). The lady who works in immigration is:

Assistant Manager
Perth Family Residence
DIAC, WA

She's emailed me to say:

"Unfortunately, as the application stands currently and without knowing the 'compelling reasons' of why you are remaining overseas, this application is not likely to be granted. Even if it is granted and if you depart immediately from Australia, there could be considerations for a cancellation of that visa. You probably am not aware that the criteria to be met is not only for 'a continuing spouse relationship' but the requirement that 'the Applicant also intends to remain in Australia permanently'. This assessment is for 'at the time of decision' and not taking into account the intention in the future."

Pollyana

Sounds then like it might be easier to let the visa expire and apply again from offshore. If you've now got 5 years together I suppose you might even get PR straight away this time....

JAJ

I think you should have a discussion with George Lombard in Sydney (search forum for contact details).

There is no legal requirement to spend the 2 year temporary period in Australia. There is a long-standing criteria (4009) that applicants should intend to live in Australia.

I would not necessarily agree with the specific interpretation that the case officer is putting on this. Also, this criteria has only been sporadically enforced and if DIAC are starting to put more emphasis on it then I think George would be interested to know and he might be interested in following up on this.

You can reapply, as Polly says if you have 5 years together you can go straight to PR, but obviously reapplication does cost money.

Msm007

Thanks for all your advice - I will talk to George and see what he has to say - Im just not sure if I should risk applying for this visa and losing money and valuable time if they've already made up their minds about refusing the visa. But then again - I was never told we had to be in Australia for a certain period of time. Does anyone know where I could find any sort of TERMS and CONDITIONS for this visa that I could quote back to this lady and see what she has to say? I've emailed her back questions three times asking her to please answer my questions as the time is drawing close to when I have to have the application lodged - and she hasn't replied once!! Grrr!

JAJ

It's all in the Migration Regulations and DIAC policy manuals but you really don't do yourself any favours by not getting professional assistance. Talk to George.

Sometimes front line case officers make mistakes which can be rectified by speaking to a manager or someone else more senior.

Msm007

Thanks everyone - I've emailed George to see which way he thinks I should go - just dont want to go one way and then realise I should have gone the other way to save time and money.

I really wanted to be home by Christmas and now this might be stuffing up all our plans of enjoying a summer at home and starting our life there! Fingers crossed.

Alan Collett

Is an update available on this thread? I'd be interested to know ...

Best regards.

Pollyana

Likewise, interesting issue and one that it would be good to see a result on.....