The future of building a life together in Australia with a partner can look bright. However, if one of you is from overseas, that bright future hinges on the complex task of getting an Australian partner visa.

Government visa application fees are expensive, so it’s understandable that couples look for ways to trim costs. But while a Do-It-Yourself (DIY) application is entirely legal, treating it as a simple ‘fill-in-the-blanks’ exercise can be risky.

The Department of Home Affairs inspects partner visa applications with high scrutiny. What seems like a straightforward process on the surface is a complex legal maze where a minor oversight can lead to visa refusal, financial loss and the derailment of your lifestyle plans.

Handling your own partner visa can be fraught with complications. Here are some:

1. The “We Are Obviously Together” Trap

Key to obtaining an Australian partner visa is proving that you have a ‘genuine and continuing relationship’. A common mistake made by DIY applicants is assuming that the subjective honesty of their relationship will naturally shine through to a Department of Home Affairs case officer. However, the Department does not base decisions on intuition or good intentions; they base them on strict legal criteria under Australia’s Migration Act 1958.

To grant a partner visa, a case officer must see clear evidence across four mandatory pillars to prove the relationship is genuine, continuing, and exclusive:

• Financial aspects: How you share financial commitments (e.g., joint bank accounts, shared household expenses, or joint major assets).

• Nature of the household: How you organise your daily lives (e.g., joint lease agreements, utility bills, and how you split household chores).

• Social aspects: How the world views you as a couple (e.g., joint invitations, travel bookings together, and statutory declarations from family and friends).

• Nature of your commitment: Your long-term plans together (e.g., wills, superannuation beneficiaries, and a deep knowledge of each other’s personal histories).

Many genuine couples simply keep their finances separate or live in an informal house-share arrangement. Without structuring hard evidence around all four pillars, the Department can, and often will, refuse the visa on the grounds of insufficient evidence.

2. A Costly Rejection (With No Refunds)

If your application is refused, the financial consequences are severe as the application fee is generally non-refundable. The Department does not give refunds for mistakes or accidental omissions.

If you choose to contest a refusal, the Administrative Review Tribunal (ART) may be able to review certain visa decisions made under the Migration Act 1958. However, the costs to appeal a partner visa application can be significant and complex cases can face long delays, from several months to over a year.

3. Navigating Complex Legal Triggers (Schedule 3)

The legal framework when applying for a partner visa becomes more complicated if the applicant’s current visa status is unstable. If you are applying for a partner visa from within Australia while holding a bridging visa, or after your previous substantive visa has expired, your application triggers a strict set of laws known as Schedule 3 criteria.

DIY visa applicants may be unaware of Schedule 3 until they receive a letter stating their application is about to be refused.

What is Schedule 3? These are additional, rigid legal hurdles designed to ensure proper compliance with Australia’s migration framework. Schedule 3 criteria include strict time limits and compliance checks, the navigation of which can be highly complex.

To bypass Schedule 3, there must be ‘compelling reasons’ as to why an applicant should be allowed to stay and apply. Compelling reasons are not defined in the legislation and are assessed on a case-by-case basis. Proving compelling reasons involves meeting a high threshold that goes far beyond simply stating, “We love each other and want to stay together”.

4. Navigating PIC 4020 and the Risk of Lengthy Bans

Under the Public Interest Criterion 4020 (PIC 4020), if an application contains false or misleading information or a bogus document, or an applicant fails to prove their identity, the visa will be refused. Even some honest mistakes may be perceived as deception to a visa processing officer.

PIC 4020 does not just apply to intentional fraud. If you accidentally provide conflicting dates about your employment history, misstate when you first met, or provide an inconsistent address on a form it may, in some cases, trigger PIC 4020.

A refusal under PIC 4020 carries a three-year ban on applying for any other Australian visa, derailing your plans to live together in Australia. If the refusal is based on identity-related false information, a ten-year ban may be imposed.

Key Takeaways

• The stakes are high: A partner visa is a legal application, not an administrative registration.

• Love isn’t enough: You must prove your relationship across four specific legal pillars (financial, household, social, and commitment).

• Mistakes are costly: Partner application visa fees are significant and typically non-refundable, and minor errors can lead to a multi-year ban under PIC 4020 rules.

• Circumstances matter: An imperfect visa history, medical conditions, or a past criminal record, add further complexity to the application making a DIY approach even riskier.

Practical Steps: How to Assess Your Options

If you are deciding whether to manage your Australian partner visa application yourself or seek professional help, consider the following practical steps before clicking ‘submit’ on your ImmiAccount:

• Perform an evidence audit: Gather all your shared documents. Can you show a continuous paper trail of living together and combining finances for at least the last 12 months? If your paper trail is patchy or relies mostly on photos and text messages, your application is likely at risk.

• Check for red flags: Be honest about your legal history. Have either of you ever had a visa refused or cancelled? Do you have any health conditions or old police records? If the answer to any of these is yes, your application is considered complex and would benefit from professional advice.

• Book a professional strategy session: You don’t necessarily have to pay a migration lawyer to handle the entire application process from start to finish. Many immigration professionals offer a one-off document review or strategy consultation. Paying for a few hours of an expert’s time to review your paperwork before submission is a small price to pay for peace of mind.

This is general information only and does not constitute legal advice. You should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please call 07 3281 6644 or email mail@powerlegal.com.au.

Australia has long been a popular destination for international students seeking high-quality education and an exciting overseas experience. Studying in Australia can be a life-changing experience, and one of the key steps to achieving this goal is obtaining the right student visa. This article explores the eligibility requirements for student visas, the different types, the role of accompanying guardians, and restrictions on the right to work. The information is general in nature only, and we recommend obtaining professional advice relevant to your circumstances before taking any course of action.

Eligibility Requirements

Most importantly, to obtain a student visa in Australia, you must genuinely intend to only stay in Australia temporarily for the sole purpose of studying. This requirement is assessed based on your personal circumstances, immigration history, and the course you intend to study.

A primary piece of evidence of your genuine intention to study will be that you hold a confirmed offer of enrolment in a registered course at an Australian educational institution. You must also have the necessary proficiency to be able to study the course in the English language. You will usually demonstrate the capacity to study in English by taking tests like IELTS, TOEFL, or PTE Academic.

In addition, you must have the capacity to support yourself during your studies with only a minimal reliance on employment while in Australia. To do this you will need to demonstrate that you have sufficient funds to cover your tuition fees, living expenses, and travel costs for the duration of your course.

To demonstrate that you are currently (and will remain) healthy enough to study in Australia, you must also undergo health examinations and maintain Overseas Student Health Cover (OSHC) for the entire duration of your stay in Australia. OSHC provides health insurance that covers medical expenses.

To show that you do not pose a danger to the Australian community, you must also provide police clearance certificates from your home country and any country you have lived in for 12 months or more in the past ten years.

During your course of study, you are required to notify the Department of Home Affairs if any of your circumstances change, such as your address, contact details, or educational institution.

Accompanying a Student as a Guardian

If you want to accompany your child while they study in Australia, you can apply for a Student Guardian Visa (Subclass 590). To be eligible for this visa, you must be over 21 years, and be the parent or legal guardian of a student who is under 18 years of age. You also need to prove that you genuinely intend to stay in Australia only to provide support and care for your child.

As a guardian, you are responsible for the welfare and accommodation of the student. You can also study yourself for up to three months, but your primary role is to support your child’s educational and living needs. Therefore, you must be able to demonstrate that you have enough funds to cover your stay in Australia, as well as your child’s education and living costs.

The application process for the Student Guardian Visa is similar to that of the Student Visa. You will need to complete an application form, provide the required documents, and undergo health and character assessments.

Work Restrictions

Most international students are allowed to undertake some work while they are studying in Australia. This can be an important part of a student’s Australian experience, supplementing their financial resources and helping to further develop skills and English language proficiency. Most educational institutions offer a range of services to help international students find suitable employment opportunities, including job fairs, career counselling, and internships.

However, there are restrictions on the amount of work that international students can undertake while on student visas. It is essential to abide by work restrictions to avoid visa violations, which could lead to cancellation or refusal of future visa applications.

If you hold a Student Visa (subclass 500), you are generally allowed to work up to 48 hours per fortnight (every two weeks) during the academic year. You can also work unlimited hours during scheduled course breaks. However, you must not start working until your course has officially commenced.

If you hold a Temporary Graduate Visa (subclass 485), you are allowed to work without restriction in Australia for a specific period, depending on the highest education qualification you have completed. The Graduate Work stream permits you to work for a maximum of 18 months.

It is important to note that student guardians (subclass 590) are not permitted to work at all whilst in Australia, as their primary responsibility is to provide care and support for the student under their guardianship.

Conclusion

An overseas student can obtain a visa to travel to Australia to study a course at an Australian high school, university, technical college, or other professional training course. Key to achieving this goal is choosing the right student visa and preparing a valid application. While Australia’s immigration laws can be complex, an experienced immigration lawyer can help demystify the process and help you through each step of your student visa application. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Australia’s dynamic immigration landscape often involves individuals who, having previously held citizenship or permanent residency, find themselves needing to navigate the intricacies of Resident Return Visas (RRVs). This article sheds some light on what RRVs entail, their usage, eligibility criteria, and the residency requirements individuals must meet to ensure a smooth transition or return to Australia.

What is an RRV?

An RRV is a travel document issued by the Australian government that allows individuals who hold or have held, permanent residency to return to Australia after their initial visa has expired. It serves as a bridge between the expiration of the original permanent residency visa and the acquisition of citizenship, providing flexibility for individuals to travel in and out of Australia.

When is an RRV Used?

There are several specific circumstances when an RRV may be required. The most common examples are:

Expired Permanent Residency Visa

Individuals with an expired permanent residency visa who wish to return to Australia need an RRV. This is particularly crucial for those whose initial visa has expired, and who have not yet acquired Australian citizenship.

Existing Permanent Residents Leaving Australia

Permanent residents planning to leave Australia temporarily and return after an extended period must ensure they hold a valid RRV to avoid complications upon re-entry.

Australian Citizens Leaving and Returning

Australian citizens do not require an RRV for travel. However, dual citizens or individuals holding citizenship in another country may need an RRV if they wish to enter Australia as a permanent resident.

Eligibility Requirements and Conditions

Obtaining an RRV is contingent upon meeting specific eligibility criteria and adhering to certain conditions.

Previous Permanent Residency

To be eligible for an RRV, applicants must have previously held a permanent residency visa or previously been an Australian citizen. The type of visa held previously can impact the validity and conditions of the RRV.

The applicant must demonstrate a substantial period of residence in Australia or significant ties to the country. This is assessed by considering the number of days the individual has spent in Australia during the preceding five years. To be eligible for a five-year RRV, applicants must have spent at least two years in the last five years as permanent residents or citizens in Australia. This establishes a reasonable connection to the country. For those who do not meet the five-year criterion, a one-year RRV may be granted if they have spent at least one day in the last five years as a permanent resident or citizen in Australia.

Compassionate Grounds

Even if individuals do not meet the standard residency requirements, an application for an RRV may be made on compassionate grounds. This involves demonstrating compelling situations concerning employment, family commitments, or unique personal circumstances.

Substantial Ties to Australia

If an applicant does not meet the traditional residency requirements, they can still qualify if they can prove substantial ties to Australia. This includes family connections, business interests, or cultural affiliations.

Australian Values Statement

Applicants aged 18 years and over applying for entry on an RRV must sign an Australian Values Statement, affirming their commitment to uphold Australian values while in the country.

Navigating the Application Process

The application for an RRV is typically submitted online through the official immigration portal. The online platform allows for efficient processing and communication with the Department of Home Affairs. The processing time for RRV applications can vary. It is advisable to apply well in advance of planned travel to ensure timely approval.

An application fee is applicable and varies based on the type of visa sought and the individual circumstances. The fee must be paid when submitting the RRV application. Applicants must provide supporting documentation, including proof of previous residency, compelling reasons for absence, evidence of substantial ties, and any other relevant information to strengthen their case.

Conclusion

To navigate the complexities of RRVs in Australia you will need a thorough understanding of the eligibility criteria, residency requirements, and the application process. For individuals seeking to return to Australia after the expiration of their initial permanent residency visa, or those planning extended stays abroad, obtaining a valid RRV is crucial. By carefully assessing individual circumstances, meeting residency requirements, and providing compelling reasons for absence, applicants can enhance their chances of a successful RRV application and enjoy the benefits of continued connection to Australia.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

A visa is a form of permission for a non-citizen to enter, transit or remain in a particular country. In Australia, a partner visa offers a pathway for individuals to join their partners and establish a life together in this country. This visa category recognises and supports genuine relationships, enabling partners to live, work, and study in Australia. However, before embarking on an application for a partner visa, it is crucial to understand the eligibility criteria and the factors used to assess the genuineness of a relationship. By understanding the requirements, individuals can navigate the partner visa process with confidence and increase their chances of a successful application.

What Can a Visa Partner Allow You to Do?

Obtaining a partner visa opens up numerous opportunities. With a partner visa, you can live in Australia for an indefinite period, work and study, access Medicare (Australia’s healthcare system), and even apply for Australian citizenship if you meet the requirements. This visa provides a solid foundation for building a life with your partner in this country.

Types of Partner Visas

There are different types of partner visas available in Australia, depending on the circumstances of the relationship. The most common ones include the “prospective marriage” visa and the “partner” visa.

A prospective marriage visa (also known as a “fiancé” visa) is for individuals who are engaged to an Australian citizen, permanent resident, or eligible New Zealand citizen. It allows the visa holder to enter Australia and marry their partner within the validity period of the visa.

A partner visa is for individuals who are already in Australia and are in a genuine and committed relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen. Both the applicant and their partner must be at least 18 years old, and the applicant and their dependents must meet certain health and character requirements. To obtain a partner visa, evidence must be provided to demonstrate the genuineness of the relationship.

What is a Genuine Relationship?

A genuine relationship is the cornerstone of a successful partner visa application. The Department of Home Affairs assesses the genuineness of the relationship based on specific factors, but it is important to note that this assessment is not limited to these factors alone. Each case is unique, and the Department of Home Affairs evaluates the overall circumstances to determine the genuineness of the relationship.

The first step of proving a genuine relationship is each person describing their commitment and emotional support for their partner, along with evidence of communication, such as emails, letters, or phone records. Another significant factor in establishing a genuine relationship is evidence of joint financial commitments, such as shared bank accounts, joint ownership of property, or joint liabilities. Proof of cohabitation is often also provided, which can be demonstrated by joint leases or rental agreements, utility bills in both names, or correspondence addressed to both partners at the same address.

Parties applying for a partner visa will often also show evidence of a shared social life, such as joint invitations to family events, travel documents showing joint travel, or photographs and testimonies from friends and family. Applicants may also produce documentation showing joint future plans, such as wills, joint investments, or joint participation in long-term commitments, like purchasing property together.

Refusal

If your application for a partner visa has been refused, you should read your refusal notice carefully because each decision is different. This letter should advise:

• if you have the right to appeal your decision
• the timeframe available to lodge an appeal
• the relevant body your appeal should be directed to.

If you are already in Australia, you will probably be granted the right to appeal the refusal to an Australian tribunal or a court. Alternatively, if your partner visa application was lodged offshore, your Australian citizen partner may be able to lodge the appeal.

The most common place to appeal a partner visa refusal decision is to the Administrative Appeals Tribunal (AAT). There are strict time limits when appealing to the AAT, so it is very important to read the appeal deadline in your visa refusal letter carefully. Unfortunately, AAT appeal deadlines cannot be extended, and we recommend obtaining legal advice to assist with a proposed appeal.

Conclusion

A partner visa supports genuine relationships by allowing partners to live, work, and study in Australia. Immigration laws, however, are complex and it is important to understand the eligibility criteria and potential issues before making an application. An experienced immigration lawyer can guide you through the process to ensure your application meets the necessary conditions to give you the best possible chance of having a visa granted.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

A bridging visa is a temporary visa that the Department of Home Affairs (DHA) might grant in certain circumstances to allow a non-Australian citizen to remain in Australia for a certain period of time. Understanding when and how to apply for bridging visas is essential, and seeking professional assistance can make the process smoother and more manageable. With the right guidance and adherence to visa regulations, navigating the complex Australian immigration landscape becomes a more achievable endeavour.

Why Apply for a Bridging Visa?

There are a number of different scenarios where you may need to apply for a bridging visa. For instance, you may need a bridging visa if your current substantive visa is about to expire, but you need to remain in the country for various reasons.

A bridging visa may also be granted if your circumstances change, and you need a temporary visa to maintain your lawful status while you address the changes. For instance, if you are on a student visa but wish to remain in Australia on a partner visa, you may need to apply for a bridging visa for the period of time between leaving your course and waiting to hear about the outcome of your application for a partner visa.

How to Apply for a Bridging Visa

Obtaining a bridging visa in Australia involves a specific application process. First, you must determine your eligibility for a bridging visa, and identify which bridging visa is right for your circumstances. This is typically done by consulting with the Department of Home Affairs or an immigration expert.

In most cases, you will also need to lodge a substantive visa application, which is the visa you want to hold once the bridging visa is granted. It is important that you complete your substantive application and attach all necessary documents, which may require you to obtain expert assistance. Once your substantive visa application is lodged, the department will assess it. If your current visa is due to expire, a bridging visa may be automatically granted to you, ensuring the continuity of your lawful status while the substantive visa application is processed.

Types of Bridging Visas

There are several types of bridging visas for different circumstances. The three most common bridging visas are A, B and C:

If your current visa is expiring and you are applying for a new type of visa, you may choose to apply for a Bridging Visa A (BVA). This will allow you to stay in Australia lawfully after your visa ceases and while your substantive visa application is being processed or finally determined. In addition, if your visa application is refused, you may have a right of appeal or review of the decision. If so, a BVA can allow you to remain in Australia until the appeal process is finalised.

In some circumstances, a BVA would have the same conditions attached to it as the visa held at the time of application. Therefore, a BVA may or may not have work rights.

You may choose to apply for a Bridging Visa B (BVB) if you are applying for a substantive visa but have a good reason to need to leave and return to Australia while waiting for your application to be processed. If you depart Australia with another type of bridging visa in effect, then that visa will cease, and you may not be able to re-enter Australia if and until the Department grants you a substantive visa.

A BVB has a defined travel period. You can leave Australia and re-enter on a BVB within this defined travel period. If you are in Australia when the travel period ends and you need to travel outside Australia again, you can apply for another BVB.

You may choose to apply for a Bridging Visa C (BVC) if you are in Australia and do not currently hold a substantive visa. This could occur if you lodged an application while holding a bridging visa, or you were unlawfully in Australia after your substantive visa expired. The BVC would allow you to remain in Australia lawfully while applying for a substantive visa to be assessed.

If you hold a BVC, you cannot travel outside of Australia and generally, this visa comes without work rights.

There are four additional bridging visas that are used in specific circumstances:

A Bridging Visa E (BVE) lets people stay lawfully in Australia while they make arrangements to leave the country, finalise their immigration matter or wait for an immigration decision. A BVE comes with very strict conditions, including reporting conditions. This visa also usually comes with no authorisation to work or study.

A Bridging Visa D (BVD) is granted when someone tried but was unable to apply for a substantive visa. For example, they did not pay the correct fee or filled out the wrong visa application form or an authorised officer is not available to interview them, but they will be able to do so within the next five working days.

A Bridging Visa R (BVR) is for people who are in immigration detention but their removal from Australia is not reasonably practicable. This allows them to be released from detention pending their removal.

A Bridging Visa F (BVF) is used exclusively for suspected victims of trafficking or slavery who do not hold a substantive visa.

Conclusion

Australian immigration laws provide for certain bridging visas to allow temporary stay extensions or appeals. The circumstances that may lead to the need to apply for a bridging visa can be complex and it is important to ensure the right type of bridging visa is sought. Seeking professional guidance from an experienced immigration lawyer can help visa applicants successfully navigate the regulations and process.

This information is general in nature only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Applying for a visa can be a daunting and complex task. While some applications can be relatively straightforward, such as a holiday visa, others can be very complicated and require an in-depth knowledge of the specific country’s laws and visa processes.

The Migration Act 1958 and Migration Regulations 1994 provide pathways allowing eligible people to migrate to Australia. Identifying the most appropriate pathway and visa type is the first step in preparing a valid visa application. Obtaining professional immigration advice before applying for a visa helps to ensure the most appropriate pathway is chosen and your application is properly made.

Save time and money

By working with an immigration lawyer, you can often save time and money by minimising mistakes to obtain a faster result.

Sometimes small things can have a huge impact on your visa outcome. If you are submitting an application for a visa by yourself or making your application based on what a friend did in their case, you could make a costly mistake. And some mistakes can have terrible consequences, such as a refusal or a considerably lengthy delay.

Form filling is only one aspect of the visa application process. If you don’t meet the requirements set by the visa type you wish to apply for, you may be just filling in applications with no chance of obtaining a visa.

Avoid mistakes and traps

An immigration lawyer understands the precise documents required for your visa type, which will help to minimise mistakes and streamline your application. Providing the Department of Home Affairs with all the forms and supporting documents required is referred to as a decision-ready application. These applications are processed faster without unnecessary delay.

Even a small error in terminology or incorrect interpretation can have a significant effect on the validity of a visa application. It is not the job of the Department to check and assist a visa applicant in their visa application. One error, however small, could leave you with an invalid application which will be returned to you without being considered by the Department, or refused.

It is important to remember that immigration laws and policies change frequently, which can mean that you may meet the requirements for a successful visa application on one day and not be eligible for the same visa the next.

Receive objective assessment

An applicant cannot always be expected to have comprehensive knowledge of particular migration laws, policies or visa processes and requirements. Individual circumstances such as education, age, health, family, character and more are taken into consideration by the Department.

By consulting an expert, you will receive objective visa assessment advice, a tested visa strategy, and clear instructions about what documents are needed. The required material can be forwarded to your immigration lawyer who will prepare your application, lodge it, and follow up with the Department on your behalf.

Skill and strategies

By using an experienced immigration lawyer, you will benefit from in-depth knowledge and strategies based on the professional’s experience working with visa applications, as well as access to legislation databases and resources.

An immigration lawyer can assist you and guide you through the different types of visas that may suit your circumstances and provide you with up-to-date information on immigration requirements and laws.

In addition to providing details of the visa requirements, immigration lawyers can complete the required paperwork on your behalf and lodge the application which can streamline the entire process.

If your circumstances mean that you are unable to obtain the visa you want, an immigration lawyer may be able to provide you with other avenues or bridging visa options that you may wish to consider, which could provide a pathway to obtaining the desired visa at a later time.

Conclusion

Australia’s migration laws and policies are constantly evolving. Getting the right information and advice from the outset can avoid costly mistakes and delays in processing your visa application. Using an experienced immigration lawyer with a sound knowledge and understanding of migration laws and procedures can make a big difference when preparing your visa application.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

If you’re running a small or medium sized business and struggling to fill certain roles with quality employees, you may have considered looking overseas to help grow your enterprise. Employer sponsored visas address genuine skills shortages in the labour market by allowing employers to bring qualified workers to Australia to fill positions that they cannot fill locally.

Becoming a business sponsor is a prerequisite to hiring overseas workers on certain visas, namely the Temporary Skill Shortage visa (subclass 482) and Skilled Employer Sponsored Regional (Provisional) visa (subclass 494). Generally, the role to be filled must appear on a relevant skilled occupations list. These lists are updated regularly to ensure they reflect shortages at a given time and may change with little or no notice.

Approved business sponsors have ongoing obligations, and non-compliance can result in penalties such as fines, barring from further nominations and cancellation of sponsorship status.

This information is for general purposes only. Immigration laws are complex and can change frequently and we recommend working with an immigration lawyer with the expertise and knowledge required to help your business secure a skilled workforce.

Becoming a business sponsor

Approval as a standard business sponsor lasts for five years and may be renewed on a continuing basis provided the employer continues to meet the relevant criteria. Once approved, a business may apply for accredited status which provides additional benefits such as priority processing.

Eligibility and process

Applications for approval as a business sponsor are made through the Department of Home Affairs and must be accompanied by the relevant fee. These costs must not be passed onto a prospective employee / visa applicant.

The proposed sponsor must lawfully operate a business within or outside of Australia and nominate the number of positions required over the term of approval. The business must be legally established and currently operating, whether that be through a sole proprietorship, partnership, trust, company or other structure.

Applications must be supported by appropriate evidence such as:

• an Australian Business Number (ABN) registration certificate;
• an Australian Registered Body Number (ARBN) registration certificate for overseas entities registered to operate in Australia;
• a company extract from the Australian Securities and Investment Commission (ASIC);
• an extract from the ASIC business name register;
• an Australian Stock Exchange (ASX) listing registration;
• profit and loss statements / financial reports;
• joint venture agreements, partnership agreements, franchise agreements;
• if the business is operating under a trust arrangement, details of the trustee, name and ABN of the trust.

Sponsors must attest to having a commitment to utilising local labour and that they will not undertake discriminatory recruitment practices. Existing Australian businesses must show that they have made genuine efforts to recruit for the occupation locally.

Start-ups and businesses operating outside of Australia

Proposed sponsors that do not presently operate in Australia should provide evidence of registration in the country in which they operate and proof that they intend to establish a business entity in Australia. This may include copies of a company or business expansion plan, joint venture agreement or contract with an Australian entity.

New businesses should provide business plans, bank statements, tax returns for the most recent year/s, business activity statements (BAS), service contracts, lease agreements, and wage records (as relevant).

Adverse information

There must be no adverse information known to the Department about the business or business owner – this is information regarding an event or situation that has occurred within the past three years and which may raise doubts about the applicant’s suitability as a sponsor. Adverse circumstances include:

• insolvency under the Bankruptcy Act 1966 or Corporations Act 2001;

• that the organisation or business owner has been found guilty of certain offences (relating to discrimination, immigration, industrial relations, occupational health and safety, people smuggling / trafficking, slavery, sexual servitude, deceptive recruiting, taxation or terrorism);

• that the organisation is being investigated, has been subject to disciplinary proceedings or legal action, or has been the subject of administrative action.

Sponsorship obligations

Business sponsors have specific reporting requirements and obligations to their workers, which may continue after the employment relationship ends.

As with all Australian employers, sponsors must comply with relevant workplace and health and safety laws and provide workers with the same terms and conditions of employment as would be provided to Australian citizens.

The employer must pay the visa holder a market salary rate and meet the Temporary Skilled Migration Income Threshold (TSMIT) to ensure that overseas workers are not exploited, and Australian workers are not cut out of a position.

The visa holder must only work in the approved occupation.

A sponsor must notify the Department in writing of certain events including:

• termination of the visa holder’s employment
• if the visa holder did not start work with the sponsor
• a change in the visa holder’s work duties
• the bankruptcy or insolvency of the sponsor
• changes in the business structure, trading name, legal name, address, owners/directors/partners, etc.
• cessation of the business

Conclusion

Finding skilled workers can be challenging and businesses may need to look overseas to fill certain roles. Becoming a standard business sponsor enables employers to hire workers under certain visas to fill specified occupations.

We recommend businesses work with an immigration professional to ensure they stay abreast of changes in regulations and policy, so they can find continued opportunities to fill skills shortages.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Although Australia’s immigration laws are complex, there are many visas providing eligible applicants an opportunity to live, study, and / or work in Australia. Many visas provide pathways to permanent residency and allow the visa holder to bring eligible family members.

Understanding different visa categories and working with an immigration professional can help identify the most appropriate visa type, and implement strategies towards achieving your immigration goals.

Choosing the right visa – working with an immigration professional

Immigration lawyers use knowledge of the legal system and their understanding of immigration processes and policies to find the most appropriate visa type suited to their clients’ skills, qualifications, and personal circumstances.

Essentially, visas are grouped into categories or classes that share common factors and have specific eligibility criteria applicable to each subclass. All visas have conditions attached which must not be breached by a visa holder. An immigration lawyer can assist in determining your eligibility for a visa and explain the relevant conditions.

Information provided by a potential visa applicant is cross referenced with the criteria required for various classes to narrow down options and identify the most suitable pathway. Often, a number of pathways are explored before determining the most appropriate.

If the criteria for a desired visa type cannot immediately be met, a strategy may be implemented so the applicant can meet the criteria in the future. In the meantime, it may be possible to apply for a different visa type or a bridging visa with the objective of applying for the required visa once the eligibility criteria can be met.

Popular visa types

Following is an overview of popular visa categories demonstrating the range of visas that may allow migration to Australia. Each visa type is subject to change and everybody’s circumstances are unique, so it is advantageous to work with an immigration specialist to find the most feasible pathway.

Skilled Visas – employer sponsored

If you want to work in Australia and have the necessary skills and qualifications, a range of work visas may be appropriate for temporary or permanent residency.

The Australian Government recognises the economic value that skilled individuals bring to the country and has implemented programs to address skills shortages and assist employers fill genuine vacancies. In some cases, the grant of a provisional (temporary) visa may lead to eligibility for permanent residency.

The Temporary Skill Shortage (subclass 482) visa allows employers to bring skilled workers into Australia to fill vacancies that cannot be filled locally. Applicants must have the skills, qualifications and experience specified for a selected occupation on one of the skilled occupations lists. These lists are regularly reviewed. The employer must be an approved business sponsor and employ the visa holder in the nominated position. There are presently three streams:

• The short-term stream grants a visa for a maximum two-year duration (or 4 years under International Trade Obligations) with a once-only renewal option.
• The medium-term stream targets long-term skills gaps and grants a visa for up to four years with an opportunity to renew indefinitely whilst the occupation remains on the list. This visa offers a potential pathway for permanent residency after three years provided the visa holder meets the eligibility criteria and has complied with all visa conditions.
• The labour agreement stream applies to employers who have entered into a labour agreement, and grants a visa for up to four years, with an opportunity to renew and to seek permanent residency, subject to eligibility, after three years.

The Employer Nomination Scheme (subclass 186) visa allows skilled workers who are nominated by an Australian business for an eligible occupation, to live and work in Australia permanently. Visa holders may enter under a Temporary Residence Transition stream, Direct Entry stream, or Agreement stream.

The Regional Sponsored Migration Scheme (subclass 187) visa allows skilled workers who are nominated by an approved Australian business operating in a regional area to live and work in Australia permanently under a Temporary Residence Transition stream or Direct Entry stream.

Business Innovation and Investment Visas

The Business Innovation and Investment (subclass visa 188) provides opportunities for experienced business operators, entrepreneurs or investors with significant assets to establish and operate a business or manage investment activity in Australia. These visas are very complex and only those invited by a state or territory government, after the successful submission of an expression of interest, may apply.

Business innovation visas may be appropriate for those with good business skills wishing to operate an existing business or establish a new business in Australia. Applicants should have sound business experience, adequate financial resources and assets and the business must be considered to be of economic benefit by the nominating state or territory. Holders of business innovation visas can live in Australia and operate their business for four years and may be eligible for a permanent visa afterwards provided the business is viable, has achieved specific targets related to growth and performance and all other criteria is met.

Investor visas require visa holders to invest in complying Australian investments of substantial amounts (from $1.5 million to $15 million) for a minimum of four years. The terms and types of investments are very specific, and applicants must have a genuine intention to reside in the state or territory in which the nominating agency is located.

Partner Migration

Partner visas allow married or de facto partners of an Australian citizen, permanent resident or eligible New Zealand citizen to travel to and live in Australia. Successful applicants are initially granted a temporary visa and, provided there is a continuing long-standing relationship (and other criteria are met) the grant of a permanent visa follows, usually after two years of the initial application. Applicants for partner visas must be sponsored and meet health and character requirements.

For partners intending on marrying, a prospective marriage visa may be granted. This is a temporary visa remaining valid for up to nine months. Once granted the applicant should enter Australia and marry within that time. After marriage, the applicant may apply for a partner visa.

Student Visas

Student visas are available for people wishing to study in Australia. These include Vocational Education and Training Sector, Higher Education Sector and Post-Graduate Research Sector visas allowing students to stay in Australia whilst studying fulltime.

Conclusion

The Australian immigration system is constantly changing with numerous visa types and various eligibility criteria to work through when lodging an application.

Immigration matters can be complex, and it is important to have a good relationship with an experienced professional who will assess your circumstances and provide advice and guidance to find a workable pathway towards your immigration goals.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Having a visa application refused can be extremely disappointing, particularly after spending considerable time completing forms, gathering documents and having paid the relevant fee, which is generally only refundable in limited circumstances.

Visa applications in Australia are processed and considered by the Department of Home Affairs. A decision not to grant a visa may be made for a number of reasons including:

• applying for the wrong visa type, which is quite common and may occur more frequently when applications are lodged without legal assistance;
• failing to meet the conditions required of a previous or existing visa;
• failing to meet eligibility criteria such as health and character requirements;
• incomplete information or inconsistencies in the application and / or supporting documents;
• insufficient funding.

If your visa application has been refused, you may be able to have the decision reviewed. The visa notification letter should state the reasons for refusal and whether the decision is reviewable. Not all decisions can be reviewed, and it is important to act quickly to determine your rights and lodge the appropriate application.

The review process for visa refusals

The Administrative Appeals Tribunal, Migration and Refugee Division deals with the review of visa refusals. The Tribunal is required to make decisions which are fair, just and economical and takes an informal approach to the review process.

When reviewing a case, the Tribunal has the power to reconsider the case in its entirety and make a new decision based on the relevant facts and circumstances.

The types of decisions reviewable by the Tribunal, who is entitled to apply for a review (which may be the visa applicant, a sponsor or close relative), the fees and time limits are set out in the Migration Act 1958 (Cth) and Regulations. The relevant timeframe within which to lodge a review application will be stated in the Department’s notification letter. The Tribunal is not authorised to make exceptions, so it is imperative to lodge the application on time.

The application for review may be completed and lodged online, by post, fax, in person or by email, and the relevant fee must be paid at the time of lodgement.

Preparing for your case

Following is an overview, and some information regarding the Tribunal’s review process.

• After an application for review is lodged, confirmation is given to the applicant and the Department of Home Affairs. The Minister for Immigration or the Department are not represented during the review process, however they must provide the Tribunal with all relevant documents concerning the case.
• The case is allocated to a Tribunal member who reviews the documents.
• A hearing date is usually set, and the applicant invited to attend and / or provide further details or respond to information.
• An applicant may nominate a representative to run the case, prepare submissions and evidence, and attend any meeting or hearing arranged by the Tribunal. The representative may be invited to comment on matters raised during the review process.
• Preparing good written submissions and evidence to support a case, and planning for the hearing is critical for an applicant to have every chance of achieving the best possible outcome of the review.

Submissions should provide background information concerning the applicant and respond specifically to the matters raised by the Department. The submissions must directly address the reasons for refusing to grant the visa.

• The Tribunal is required to inform an applicant of certain information that could result in an adverse outcome of the review and provide an opportunity for the applicant to respond within a specified time. It is important to respond timely and appropriately so the opportunity to put forward a case is not lost.

The decision

The Tribunal may:

• affirm the decision;
• vary the decision;
• substitute the decision for a new one;
• send the case back to the Department to make a new decision.

The timeframe for the Tribunal to determine a case will depend on the circumstances and complexity of the matter, noting that some cases will be given priority in accordance with legislation and policy directions.

In most cases, a decision will not be made at the hearing and the Tribunal member will send the applicant and Department a written determination afterwards.

Occasionally, a decision may be made at the end of the hearing and the Tribunal member will announce this verbally and may provide written reasons for the decision within the following 14 days. Alternatively, the member may announce the decision and reasons at the end of the hearing. In such cases, an applicant may request in writing within 14 days, to be provided with a written version of the determination.

Applicants who are not happy with the Tribunal’s decision may have a further opportunity to appeal to the Federal Circuit Court, but only on a question of law. This is a complex area and visa applicants should obtain legal advice regarding their eligibility to appeal Tribunal decisions.

Conclusion

Many factors may cause a visa application to be refused. No matter what the reason, it is important to act quickly to protect your rights and to make sure that all avenues are explored to achieve the best possible outcome under the circumstances. Obtaining timely advice from an experienced immigration specialist is vital.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

To be granted a visa, an applicant must meet the prescribed eligibility criteria for the relevant subclass and submit a valid visa application in accordance with Australia’s immigration laws. An invalid application cannot be considered and will be returned by the Department of Home Affairs to the applicant (or representative), even if that person might otherwise meet the required criteria.

Submitting an invalid visa application can waste thousands in preparation costs, extend wait times by months, and cause great inconvenience as the applicant remains in a state of limbo. An invalid application is particularly detrimental when timing is a critical element in the application process.

While it’s true that some applicants do not meet the criteria required for the grant of a certain visa type, many applications are unsuccessful because of procedural errors rather than actual ineligibility.

Navigating a complex immigration system and being familiar with the Department’s policies and procedures is essential for submitting a valid application. This article looks at some common pitfalls which can lead to costly visa application mistakes. The article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.

Applying for the wrong visa type

Australia’s immigration system provides pathways for temporary and permanent residency. With around 100 visa subclasses available, each prescribing very specific eligibility criteria, making the right choice from the outset is essential to avoid wasting time and money and to increase the prospects of being granted residency.

Applying for the wrong type of visa can also be detrimental to a successful grant down the track. For example, if a person who proposes staying in Australia long term applies for, and is granted a tourist visa, then the visa holder’s real intention (to stay longer) may be seen as a breach of a condition attached to that visa and jeopardise the grant of a further long-term visa.

Assessing the most appropriate pathway based on an applicant’s skills, qualifications, personal circumstances and visa history requires a considered approach, usually with the assistance of an immigration lawyer.

Lack of supporting documents

The Department assesses thousands of visa applications and must be satisfied that an applicant meets the required eligibility for the class of visa sought.

In addition to verifying an applicant’s personal identity through birth certificates, passports, etc, various visa types require proof of other matters such as:

• Relationship status – documents to prove a genuine de facto relationship exists such as joint bank account statements, and testimonials from friends and family regarding the nature and length of the relationship.
• Business activities – evidence of company trading history such as financial reports and accounting records, which may need to be audited and verified.
• Personal assets and resources – complex personal wealth, company and trust structures need to be analysed and presented in a manner consistent with Departmental requirements.
• Qualifications, trades and skills – credentials gained overseas need to be matched with the relevant Australian standards and validated through skills assessments.
• Employment records and experience – tax returns, payslips and work references.

Immigration lawyers understand the documentation required to authenticate this information and often draw on experience in other areas such as corporate law and trusts to ensure an application is properly supported.

Mistakes in the application

The correct and most recent visa application form must be completed in accordance with the instructions. Common mistakes include failing to complete separate applications for additional applicants (such as a dependent child over 18 years), application forms not being signed by all applicants, and using a post office box rather than a residential address. These simple mistakes can be avoided by carefully reading and checking forms and instructions.

Inconsistencies

Information provided to the Department is scrutinised for inconsistencies. Details may be checked against a range of sources including previous visa applications, supporting documents, government records and even social media profiles. Information provided to the Department that is contradicted through Facebook posts can be a problem.

It is important to triple check everything before lodging the application, paying particular attention to inconsistent dates which can raise legitimate questions. Transparency is essential and copies of all information submitted should be retained by a visa applicant.

Innocent irregularities can usually be explained, however identifying issues before they are queried at Department level is preferable. Working with an immigration lawyer to understand and address any matters that could raise concern is wise.

Bad timing

Delays in meeting eligibility criteria and obtaining documents within prescribed timelines can impact significantly on the application outcome. Generally, little flexibility is permitted when it comes to non-compliance, even if a deadline is only marginally missed.

The validity of some visa applications can be affected by the applicant’s location at the time the application is made. Attention to timing requirements for submission with respect to whether an applicant must be on-shore or off-shore when an application is lodged is critical.

Processing times for applications vary, and it is important to plan strategically to ensure that eligibility criteria can be met and supporting documents provided as prescribed.

Conclusion

Many visa refusals are based on procedural issues rather than an applicant’s inability to meet the required criteria. In many cases, an application will not even be considered and be returned to the applicant as invalid. In some cases, an invalid visa application may be relodged, and a visa refusal reviewed. Of course, it is preferable to avoid this situation in the first place by submitting a valid and supported visa application.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.