Case Studies

Resident Return Visa – Substantial ties

Principal applicant had been granted Permanent Residence but had not spent sufficient time in Australia to qualify for the grant of a Resident Return Visa.

The client was a principal shareholder and director of a large overseas business which required him to spend substantial time in his own country. He also had significant Australian business interests.

When applying for a Resident Return visa, reliance was placed on Regulation 155.212 (3) – substantial business and personal ties in Australia which are of benefit to Australia. In support of this argument, the following submissions were made on behalf of the applicant:

  • He had entered into a joint venture project in Australia for property development purposes and had provided significant funds to enable the developments to proceed.
  • Although the applicant is not often in Australia he could demonstrate that he was involved in decision making and management issues relating to the joint venture.
  • Some of the development projects the applicant was involved in were marketed in the applicant’s home country and he organised and participated in those programs. or
  • The development projects created employment prospects for Australian citizens and Permanent Residents.
  • The applicant’s children spent a substantial portion of their time in Australia and were well settled.

As a result of the submissions made, a Subclass 155 Resident Return Visa was granted for a period of five years.

Character/ Spouse Visa

An Australian citizen married a foreign national who had convictions for serious assault resulting him receiving a sentence of three and a half years jail. The parties sought to apply for a Spouse visa so that they could relocate to Australia.

Section 501 of the Migration Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he / she passes the character test. The term “character test” is defined and includes situations where a person has been sentenced to a term of imprisonment of twelve months or more.

Prior to his conviction the applicant was leading an aimless life. He had no direction and got into various brushes with the law; he had difficulty holding down jobs and had anger management issues.

The applicant committed a very serious assault on a man resulting in a conviction and three and a half years in prison. The effect of the sentence was that he was a person of “bad character” and subject to the provisions of section 501 of the Act.

Submissions were made on behalf of the applicant that he had changed as a result of his time in prison and his subsequent marriage and that his anger management issues were now under control.

Spouse visa was granted on the basis of the submissions made.

Renunciation of Citizenship

Applicant was born in Australia in 1945 to Australian parents and when five years of age the family relocated to Rhodesia.

In 1964 Rhodesia became self governing and the northern Rhodesia British Government, concerned about possible unrest during and after independence, urged overseas residents to register with it in order to obtain travel document so that if it became necessary, they could be evacuated. As a result, the applicant was issued with a British passport with “no right abode” in the United Kingdom. Unbeknown to the applicant, the effect of obtaining this passport was that Australian citizenship rights were lost.

The applicant subsequently applied for and obtained an Australian passport. However, after landing in Australia the Immigration authorities realised that the passport should not have been issued and took steps to cancel it.

Application was successfully made for reinstatement of Australian citizenship.

Business Sponsorship Monitoring

An overseas company approved as a Business sponsor sent twenty workers to Australia to work on a large construction project. These workers had specialised skills that were not available in Australia and were part of a much larger workforce comprising Australian citizens and Permanent Residents.

The Department of Immigration issued a monitoring notice to the company and sought details of all payments made to overseas workers as the Department was concerned whether the minimum salary levels prescribed in the Regulations had been adhered to.

Given the relatively short period of time the workers were expected to be in Australia (four months), the company had sought and obtained taxation office approval to withhold superannuation payments from the employees. In other respects payments made to the workers complied with the minimum salary level requirements contained in the Migration Regulations.

Based on submissions made to the Department of Immigration, the decision was made that the company had complied with its Sponsorship obligations and that no breaches had occurred.

Subclass 457 Medical Waiver

Visa applicant sponsored by Australian employer. Husband was subject to epileptic fits which were ongoing.

Medical reports showed that although the condition had stabilised, medication was required indefinitely in the future and as a result, the Secondary applicant failed to meet the visa criteria as one of the conditions in the Migration Regulations is that a person must not have a disease or condition which is likely to require healthcare or community services which would result in a significant cost to the Australian community or prejudice the access of an Australian citizen or Permanent Resident to healthcare or community services ?regardless of whether the healthcare or community services will actually be used in connection with the applicant.

Having regard to the likely cost of treatment, the employer consented to bear responsibility for the costs of any treatment that would be required, and application was made to the Department of Immigration for waiver of the health requirement. This waiver application was approved and the visa granted.

Three year exclusion ban waiver

A highly experienced IT Specialist had applied for a Subclass 457 visa without seeking professional assistance.

Mistakes made at the time of lodging meant that the application was invalid. Delays were encountered in the processing of the application and by the time it was looked at, the substantive visa the applicant had entered Australia on had expired.

Because the application was invalid, it could not be considered and because the substantive visa had expired, the applicant was in Australia unlawfully and could not lodge any further application from within the country. Also, he was subject to a three year exclusion ban.

The applicant travelled offshore and a fresh visa was lodged together with submissions as to why a re entry ban should be set aside. The submissions were accepted and the visa granted.

Sponsored Visitor Visa – MRT Review

Visa applicant had made four applications for a Visitor visa to Australia in order to visit Australian family members. Each application had been refused. The last application was a Subclass 679 Sponsored Family visa.

Application was made to the Migration Review Tribunal for a reconsideration of the rejected subclass 679 visa. Detailed submissions were prepared on behalf of the review applicant and visa applicant as to why the decision should have been overturned. The submissions focused on the extensive ties the visa applicant had with his home country and demonstrated why it would be unlikely that he would refuse to return were he to be granted a visa to enter Australia.

Following a hearing the Tribunal concluded that it was satisfied that the visa applicant’s personal ties to his home country in the form of family members and employment were sufficient to prevail over the effects of any other factors and would be sufficient to encourage him to return home at the end of a visa. Accordingly, the application was remitted to the Department to consider the remaining visa criteria.