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Extending a Stay in Australia for Love?
Can love conquer all?
Or does the law sometimes have the power to conquer love?
What if you have a client who has been in Australia on a Working Holiday (Subclass 417) visa – is there any way that you can help them get a Visitor visa (Subclass 600) to enable him to stay in Australia beyond the expiration of the Working Holiday visa so that he can stay in Australia with the partner of his dreams until the end of her own Working Holiday visa?
These intriguing questions were all raised in a case that was handled before the AAT by Migration Alliance’s Convenor, Liana Allan.
The AAT’s decision has not yet been published on Austlii, but here are the details:
The applicant originally arrived in Australia on a Working Holiday visa from the UK in April 2015.
While in Perth, he met a woman who is also a UK national, and formed a relationship with her. Before his 12-month Working holiday visa expired, he applied for the Visitor Visa. It was his desire to remain in Australia with his partner until June 2017, when her own Working Holiday visa was due to cease. He had previously been single for 8 years, but stated that he was spending every day with his partner, that he loved her, and that he was concerned that the relationship could fail if he was forced to return to the UK without his partner.
Unfortunately, the Visitor visa application was refused by the Department on the basis that the applicant did not meet the requirements specified in clause 600.215 of Schedule 2.
This clause provides that a Subclass 600 Visitor visa may not be granted if it would result in authorizing a person who had also previously held a Working Holiday visa to stay in Australia for a total period of more than 12 consecutive months, unless it can be shown that “exceptional circumstances” exist.
So what happened at the AAT? Was the applicant able to persuade the Tribunal that there were exceptional circumstances arising from his desire to remain with his partner?
In assessing this issue, the Tribunal member had regard to Department policy in PAM3, which provides that, for the purposes of clause 600.215, “exceptional circumstances” are limited to:
- The death, serious illness or serious medical condition of a member of the visa applicant’s close family in Australia, in circumstances where the visa applicant is required to stay in Australia to provide assistance or support; or
- A change in the applicant’s circumstances, or the circumstances of an Australian resident, that could not have been anticipated at the time that their visitor visa was granted and is beyond the visa applicant’s control and where not granting a visa could cause significant hardship to an Australian resident or citizen.
So policy really contemplates that only a very narrow range of circumstances are to be considered as “exceptional”.
Submissions were made to the Tribunal by Liana that: the purpose of the visitor visa would be to enable the applicant to continue his travels in Australia; that the grant of the visa would not adversely affect any Australians (after all, what’s one more visitor from the UK!!); and that the applicant “is just doing what any person would be doing at his age, and that is seeing the world and experiencing life and love”.
The Member was not, unfortunately for the applicant, persuaded by these submissions (and everyone knows just how persuasive Liana can be!!!).
While the Tribunal member expressed sympathy for the applicant’s situation, and observed that the Tribunal was not bound by Departmental policy, the member had regard to the guidelines nonetheless.
And the member concluded that the applicant’s circumstances were not “unusual, uncommon or out of the ordinary”. Rather, the member considered that “the desire to prolong or extend holidays and travels, especially with a partner or a loved one, is a rather common, if not daily and repeated occurrence”.
So the member found that the applicant did not satisfy the test of showing exceptional circumstances.
The refusal of his visa application was affirmed.
There is a certain deep irony in this case. Didn’t it used to be (back around 1788) the people from the UK would do anything to avoid going to Australia? Here we have a case where the applicant was incredibly keen to avoid going back to the UK!!!
So, you may wonder, what has been the ultimate outcome of this case?
Suffice it to say that neither the applicant or Liana has given up yet!!!
You wouldn’t expect that Liana wouldn’t have some strategies up her sleeve to help the client achieve his desired outcome, would you?
So, as the saying goes, stay tuned…..(we'll provide a link to the AAT decision when it is published!)
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Comments
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Saturday, 24 September 2016If the ultimate purpose is to stay in Australia up to June next year, I would say make an appeal to the Federal Circuit Court. He will have sufficient time legally stay in Australia until both of them leave Australia together. The only thing is to make sure the appeal can be validly lodged.
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Sunday, 25 September 2016
It would cost less to appeal next to the Minister though, right? She's going to get him the time he wants either way. This is the mark of a seasoned agent. Liana's got FCC or Minister. He's a visitor and probably wants to save a bit of money so I'm tipping Ministerial Intervention next. This is fascinating.
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Sunday, 25 September 2016
He would have know that the change of getting a visitor visa after the completion of working and holiday visa is next to zero.
The tribunal was right that the circumstances were not “unusual, uncommon or out of the ordinary”. -
Monday, 26 September 2016
Imagine having to be Liana and handle this client. She is literally given a basket case and needs to figure out a way to get him his 12 months. This is why people need migration agents. Well, good migration agents, with guts. I think most agents would say 'no, sorry we can't help'.
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Tuesday, 27 September 2016
Time is his currency. MI for me, he can waste 20 days before lodging and another 28 days after the result. That is a 2 months bonus for the start and we all know how long it will sit in the hard basket at MI office. Go for it Liana
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Tuesday, 27 September 2016
MI means the person will have 3 years exclusion period, unless the Minister actually made its decision to intervene by grant you a visa.
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Tuesday, 27 September 2016
Grant him a visa
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Tuesday, 27 September 2016
Liana Allan is literally going to work the system to get him the time he wants. Brilliant. This is going to be my newest strategy.
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Tuesday, 27 September 2016
The Ministerial Intervention Unit may turn it back within few hours, if they've considered it is a hopeless case, isn't like previously, a MI request will buy you few months at least ,everything is changing.
And remember that persons involved are working holiday makers, not Australian Citizen or PR in this case. -
Tuesday, 27 September 2016
MI is not going to work. The case may only be able to settle at courts.
There will be no loser and no winner in the end. A person wants to extend his stay, temporary and lawfully, in Australia for a length of time, for love. The outcome becomes irrelevant when time passes by. It just one those cases, naturally.
It is my personal view. -
Wednesday, 28 September 2016
Ministerial Interventions do not come with an exclusion period.
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Wednesday, 28 September 2016
Adrian Paulito,
The MI is not an application for Bridging Visa, and he can only apply for a BVE after his BVA (in associate with his visitor's visa application) had expired, so, unless the Minister grant him a visa, substantive, or even a BVA (never happened before to my knowledge), then he will face three years exclusion period, for his further application (most TR visas). -
Monday, 24 April 2017
In this particular case or similar cases, is the member obliged to consider all new information before it or restrict its review to all information provided up until time of Departments decision ??
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Monday, 12 November 2018
What happened to this case????
Immigration blog
It is great to know the facts of the case and to learn how the AAT will decide this case.