Friend Has Australian Spouse Visa Refused

[david96]

A friend of mine has just had a spouse visa refused to Australia and the grounds were that he had two previous sponsorships one in 1990 and one in 1998. in 1996 the legislation was changed to only two sponsorships in a lifetime, thus making the legislation retrospective. His first sponsorship was a financee visa but she returned to Thailand after two months, the second was a spouse visa that ended in divorce four years later when she entered into a de-facto relationship with a third party. He has been married for 20 months with his current wife.

He can take the case up with the Migration Review Tribunal in Australia otherwise his other alternatives are limited or not practicable.

Any other TV members had this experience?

He has engaged the services of a licenced Migration Agent with a law firm in Australia.

[gburns57au]

This is the relevant part from the site.

When you may not be eligible

You may not be able to sponsor your partner if any one of the following applies:

you are not an Australian citizen, Australian permanent resident or eligible New Zealand citizen

you have previously sponsored two other partners for migration to Australia (including sponsorships you may have withdrawn where your former partner obtained permanent residence on domestic violence grounds)

you have sponsored another partner within the last five (5) years

you were sponsored for a partner visa as a partner yourself within the last five (5) years

you are the holder of a Woman at Risk visa (Subclass 204).

If you have previously sponsored or been sponsored, you may still be permitted to sponsor your partner in compelling circumstances, such as:

if your previous partner has died or abandoned the relationship leaving young children

if your relationship with your current partner is long standing (ie, five (5) years or more)

if you and your current partner have dependent children of your relationship.

I would say that his only option. if the above doesnt apply. is to appeal the decision with the assistance of those he has already been in contact with.

[mark lamai]

believe it or not i reckon the best thing to do is make a lot of noise.

it shows you are genuine.

pester your local member of parliament,

your state member of parliament,

the immigration minister.

anyone in government you can think of.

emails and phone calls very frequently.

and talk to all your australian friends,

most have never heard of our appalling rules about immigration and how discriminatory they are.

any sort of publicity in aus would be great too.

noise noise noise!!!!

because those bureaucrats hate it,

and will often pull levers to shut you up.

[aussiestyle1983]

I agree, make a lot of noise and see what happens if it is a genuine relationship. But the law is the law and his previous attempts that have failed might also be held against him anyway...............................

[david96]

There are now further developments in this case. He is going to take the matter up with the MRT as they may be able to "set aside" the decision made in Bangkok. This was after consultation with an immigration lawyer who will prepare the submission and lodge it with the MRT. Ccosts in total will be about $3000 and will take from 120 to 280 days as it is not regarded as urgent, onshore applications are processed first.

If that fails he has two options,either live in Thailand or as a last resort terminate the marriage. It is now just a matter of waiting for the decision by the Migration Review Tribunal.

[gburns57au]

There are now further developments in this case. He is going to take the matter up with the MRT as they may be able to "set aside" the decision made in Bangkok. This was after consultation with an immigration lawyer who will prepare the submission and lodge it with the MRT. Ccosts in total will be about $3000 and will take from 120 to 280 days as it is not regarded as urgent, onshore applications are processed first.

If that fails he has two options,either live in Thailand or as a last resort terminate the marriage. It is now just a matter of waiting for the decision by the Migration Review Tribunal.

Keep us posted David

[david96]

Here is an update

An application has been filed with the MRT in Australia though a licenced migration agent (law firm) and it would appear that he will have a good chance that it will be "set aside"as they look at the application from the terms of hardship for the applicant and the fact that the first sponsorship did not obtain any permanent immigration advantage.There were a number of other factors involved. The file is sent to Australia from Bangkok on the instructions of the MRT for evaluation.

The success rate is about 75% for this class of visa.

[gburns57au]

should be an interesting exercise.

The two for life rule needs to be changed or dropped.....

the 5 year rule for each sponsorship is far more just......

1 in 5 years

2 in 10 years

3 in 15 years

etc....

[david96]

should be an interesting exercise.

The two for life rule needs to be changed or dropped.....

the 5 year rule for each sponsorship is far more just......

1 in 5 years

2 in 10 years

3 in 15 years

etc....

Yes,the legislation needs to be changed as the regulation 1.20J was to prevent serial sponsorships. It was introduced at the end of 1996 so not sure what political party was responsible and I do not think there was any debate on the matter.

Abolish the two in a lifetime rule.

[Chris Lawrence]

should be an interesting exercise.

The two for life rule needs to be changed or dropped.....

the 5 year rule for each sponsorship is far more just......

1 in 5 years

2 in 10 years

3 in 15 years

etc....

Yes,the legislation needs to be changed as the regulation 1.20J was to prevent serial sponsorships. It was introduced at the end of 1996 so not sure what political party was responsible and I do not think there was any debate on the matter.

Abolish the two in a lifetime rule.

I have heard from others that a fake marriage will cost the girl $30,000; this is probably why the law is there.

[david96]

And here is how the MRT examine "compelling cicumstances" From the DIACs manual PAM3.

PAM 3, Part 1 Division 1.4B states that while no definitive list can be given on what are compelling circumstances, some general aspects that may be particularly important are:

the nature of the hardship or detriment that would be suffered (by the sponsor/nominator) if the sponsorship/nomination were not approved. For example, greater weight may be given to hardship or detriment stemming from breaches of a person's human rights than to that stemming from circumstances that are normally encountered in daily life;

the extent and importance of the ties the sponsor/nominator has to Australia, and the consequent hardship or detriment that would be suffered if the sponsorship/nomination were not approved. For example, greater weight would be given to hardship suffered by the Australian party if they had very close ties to Australia with fewer ties in the visa applicant's home country.

PAM 3, Part 1 Division 1.4B gives guidance on deciding whether an "innocent sponsor" would meet the criteria of compelling circumstances. It states that:

It is open to decision makers to decide whether this situation would meet the criteria of compelling circumstances. However, this would depend on the individual circumstances of each case such as whether it is possible to establish the bona fides of the original relationship or whether the first sponsorship/nomination was "careless" (sponsored/nominated with the expectation that if things didn't work out, they would be free to try again). While the first relationship may not necessarily be bogus, this scenario may still represent a misuse of the migration provisions.

[Chris Lawrence]

There was a gentleman about 12 months or more had a similar problem. I believe what was proved that one of his applicants did not take up residency so never countered for the two person rule. Have a look back thru the posts? I think he had a good result, but did it himself.

The sad thing about this issue is that the imm. solicitors are the winners. Just go to them with an issues and they will give you a % figure of success. This is what you want to hear and believe. That is I am that 10-90% chance of succeeding. What they won't do is say look if it does not work I won't charge.

I think that these situations do require some noise, but it needs to be well constructed and delivered to the people that count. My experience with imm at Bangkok was to be told to seek the service of imm lawyer to do application and that the person I spoke to did not disclose their name. You need to look at the imm charter to see how you should be treated. Use this type of approach. Of course all situations are different, as mine will be different to you.

Does the imm specialist give situations were they have dealt with these types of issues and won or lost. Can they direct to some transcripts were these issues have been dealt with in the courts? Read some of this to see how it relates. I just see some imm specialist as being the same as used car dealers and bank managers.

You may try sending an email to the immigration minister outlining the problem. The minister also has the power to approve the application. Ask the imm specialist what % the minister may approve? The courts are an expensive way.

Good luck

[david96]

For anyone who is interested here is the website of the Migration Review Tribunal.

http://www.mrt-rrt.gov.au/

There is a correct procedure to be adhered to, he is doing it according to the requirements,applying to the MRT

There are no shortcuts. Costs are pretty much fixed.

It pays to browse the links to previous cases, they are very interesting.

[Aussietraveller]

If that fails he has two options,either live in Thailand or as a last resort terminate the marriage. It is now just a matter of waiting for the decision by the Migration Review Tribunal.

David96,

On the basis of this statement that you have have made, i would have to ask how serious is he about the relationship?

If he cannot get a Visa for his wife, he would "terminate the marriage"

If that is the attitude of the applicant, he does not deserve to get the visa.

Does he view the marriage as something that is good as long as it is convenient for him?

[david96]

In answer to aussietraveller.

He regarded this as a very last option if all other avenues failed for example he could not live in Thailand for any reason.

[Aussietraveller]

David96,

I hope that you friend is able to sort this out.

I am sure that he will find a way.

Although jumping up and down and making waves does sometimes produce results, and we all feel like it at times with OZ Immigration,

perhaps he could try to find someone at immigration sympathetic to his case.

Often those that work in the system, know the best avenues to get around it in different circumstances.

Good Luck to him.

[david96]

And here is an update for those interested.

The case is being reviewed by the MRT, and a licenced migration agent has been engaged. He hopes to have a reply within two months (end of March). His wife was granted a 6 month 676 visa by DIAC in Bangkok while the case is being heard.

[dr_Pat_Pong]

And here is an update for those interested.

The case is being reviewed by the MRT, and a licenced migration agent has been engaged. He hopes to have a reply within two months (end of March). His wife was granted a 6 month 676 visa by DIAC in Bangkok while the case is being heard.

DIAC is expecting to get rolled at the MRT hearing I reckon.

[dr_Pat_Pong]

And here is an update for those interested.

The case is being reviewed by the MRT, and a licenced migration agent has been engaged. He hopes to have a reply within two months (end of March). His wife was granted a 6 month 676 visa by DIAC in Bangkok while the case is being heard.

[david96]

Here is a further update.

Almost six months after the submission to the MRT his migration agent received a letter stating that they could not accept the documentation because it arrived after the due date according to the MRT date stamping. Australia Post had a tracking system that proved that the mail had been delivered one day earlier than the due date. The MRT would not accept this proof, and returned his application fee.

The migration agent has taken the matter up with the Commonwealth Ombudsman who has found systamatic failures within the MRT operating procedures regarding the receipting of mail. The end result has not yet been finalised and the investigation is ongoing.

[roygsd]

A friend of mine has just had a spouse visa refused to Australia and the grounds were that he had two previous sponsorships one in 1990 and one in 1998. in 1996 the legislation was changed to only two sponsorships in a lifetime, thus making the legislation retrospective. His first sponsorship was a financee visa but she returned to Thailand after two months, the second was a spouse visa that ended in divorce four years later when she entered into a de-facto relationship with a third party. He has been married for 20 months with his current wife.

He can take the case up with the Migration Review Tribunal in Australia otherwise his other alternatives are limited or not practicable.

Any other TV members had this experience?

He has engaged the services of a licenced Migration Agent with a law firm in Australia.

HI David,

Having read the first response to your posting (sorry cannot remember the posters name) where the poster has kindly set out the conditions surrounding the sponsorship I am fairly confident that if the facts are as reported a mistake has been made by the Department which could be put right by way of a review of the case by the Department rather than having to go through the formal appeal process.

As it appears that the first person sponsored by your friend returned to LOS after just two months and did not attempt to stay in Australia I feel that it would be considered unreasonable in law if that was not discounted for the purpose of the present application.

As your friends second sponsorship was over 5 years ago it would seem reasonable that the current application the 5 year rule should not come into play.

As Australian law is based mainly on UK law, a basic principal of which is that decisons have to be " reasonably made", I am fairly confident that any person or body reviewing the facts relating to this refusal would not consider that decision to have been "reasonably made" IF the facts as reported are correct.

In your friends position I would get as much information regarding the legislation and prevous case law ( I suspect plenty is available on the internet and sites like this) and prepare a lengthy letter "beefing up" the facts and indicating where he feels the decision is out of step with the legislation surrounding these matters long before before I went to the expense of appointing a law fir to submit an appeal onmy behalf.

In the first instance I would write/fax/email the department and ask to see a copy of the Guidance Notes issued by the Government to the Department and used by its Officers when determining these applications.

If they say that no guidance notes were referred to in this in particular instance then ask them to confirm that in writing along with an explanation as to why the officer failed to refer to the guidance notes.

In the event the Officers start quoting other cases to you then point out that each application must be treated on its own merits and also point out that natural justice requires the Department not to issue " blanket responses" with applications such as this.

I spent many years dealing with matters with local government who's staff simply did as the Department told them rather than checking to ensure that the Departments Policies were not at variance with the actual legslation.

In 99% of cases where I asked the officer to put in writing how they had arrived at their decision and ask for the matter to be reviewed at a higher level (whilst making clear that I would be refering the matter to a higher authority outside of the departments control if that review didnt reverse the decision!) the departments reversed those decisions rather than have their procedures and policies examined by " outsiders".

Please ensure your friend prepare's his case properly, there is much merit in the saying " if you fail to prepare then you are preparing to fail".

Good luck, and please let us know the evential outcome

Roy gsd

[roygsd]

In answer to aussietraveller.

He regarded this as a very last option if all other avenues failed for example he could not live in Thailand for any reason.

Whilst I would prefer to keep the Human rights issue in reserve (should the departmental review I have suggested prior to a formal apppeal being submited be unsucessful) the fact that Thailand excludes farangs from certain areas of employment

is a powerful arguement to have the decision overturned, equally important is the Human Right Act which relates to the right to marry and found a family.

If you needed to go further you could point out Thailands failure to observe the human rights act in relation to the death of 2800 suspected drug users/dealers where nt one person was ever brought to trial for any of those deaths, the list is endless really.

Roy gsd

Edited July 21, 2008 by roygsd

[Old Croc]

A few points:

1. Making noise to the Minister, etc, before completing the review process is pointless. The Minister will not look at the case on humanitarian grounds until it has been reviewed by the independent review board. Incidently, I read something recently about a likely removal of the Ministerial review process because of the huge amount of cases before him. (from memory, he grants visas in about 40% of cases).

2. I would make sure your Migration Agent is not telling porkies about the posting date of the review. I've heard of many cases where a slack, useless agent has forgotten to process/post an application by the due date, and they invariably blame the department or board. All govt agencies have a fixed routine for date stamping applications upon receipt and it would be unlikely the error would be theirs. There are some dodgy M/agents in Australia, as well as very good ones. A good agent will generally give you free advice on the likelyhood of failure before signing you up.

3. Providing the application is accepted by the review board, I believe there would be a strong likelyhood of the decision being overturned because of the early termination of the first sponsorship, and the length of the current marriage. (wouldn't hurt to get pregnant however! )

[Chris Lawrence]

It doesn't hurt to put a well worded letter to the ministers, opposition leader, the Prime Minister your local member just to alert them to the faith you have in your relationship and the shortcomings that you are now fronting. By one day you are rejected? A marriage that never eventuated and hence the spousal visa never acted on.

Like many people it takes time to form a good relationship, even though some have been thru 1, 2, 3 marriages and are 40, 50+. This is just hard earned experience and is understood by both men and women.

Make as much noise as you can. The situation Dave gives above can be explained.

[david96]

Aust.Post has a tracking system for some classes of mail and they can determine exactly when mail is delivered. The MRT did not date stamp their mail received on that particular day until 4 days later. The MRT had not observed their own operating procedures and had been caught out, what they had been doing had been going on for a long time. It was not just one piece of mail that was affected but all mail received that day.

The MRT has to accept the submission first so the investigation has to be completed.

The matter is being treated very seriously by the Commonwealth Ombudsman and is a procedural problem within the MRT.

The requirements are that all mail received on any given day must be date stamped as received on that day. Not one or more days later.

[Old Croc]

Aust.Post has a tracking system for some classes of mail and they can determine exactly when mail is delivered. The MRT did not date stamp their mail received on that particular day until 4 days later. The MRT had not observed their own operating procedures and had been caught out, what they had been doing had been going on for a long time. It was not just one piece of mail that was affected but all mail received that day.

The MRT has to accept the submission first so the investigation has to be completed.

The matter is being treated very seriously by the Commonwealth Ombudsman and is a procedural problem within the MRT.

The requirements are that all mail received on any given day must be date stamped as received on that day. Not one or more days later.

As that's the case the MRT will have to fold on the issue and will end up with a rap over the knuckles by the Ombudsman.

[david96]

This ruling in the para. below overides the 1.20J requirement

The applicant and their sponsor are already in a long-standing spouse relationship (taken to be a relationship which has existed for at least 2 years.) Ref PAM3.

At the time of application the relationship had existed for 19 months from date of marriage. The definition of long standing is not defined in DIAC document 1127.

If he (the sponsor) had waited another 6 months or more the 1.20J rule would not have applied.

In other words the sponsor failed the criteria for the class of visa (309) at the time of application but provision is made for an appeal to the MRT within the proscribed time, in this case 91days from the date on the letter from DIAC advising of the decision.

Only the MRT can waive this rule and to do this they must accept the submission first. If the MRT agree to accept the submission and a tribunal member examines it the sponsor will have been in the relationship with his wife for almost 3 years or more. When the 1.20J requirement is waived by the MRT the visa application can proceed to its final completion.

The Commonwealth Ombudsman has to complete the investigation into the MRTs operating procedures into mail handling, date stamping and acceptance first.

[ozsamurai]

I am in the exact same position as this man. I was first married to a Visa con-artist in 1993, divorced in 1994, #1, re-married in 1995 married for 9 yrs, we moved to Oz and were divorced, applicaton process was terminated, they still count this as #2??. So now, I either marry an Australian resident or spend the rest of my life alone, how fair is that?? If you know where I can complain, post a link... I can understand the aversion to serial sponsoring, totally suppport it, but there are exceptions for us normal folk.

Oz

[david96]

I am in the exact same position as this man. I was first married to a Visa con-artist in 1993, divorced in 1994, #1, re-married in 1995 married for 9 yrs, we moved to Oz and were divorced, applicaton process was terminated, they still count this as #2??. So now, I either marry an Australian resident or spend the rest of my life alone, how fair is that?? If you know where I can complain, post a link... I can understand the aversion to serial sponsoring, totally suppport it, but there are exceptions for us normal folk.

Oz

The 1.20J rule was introduced on 1 Nov. 1996, and was made retrospective to prevent serial sponsorships. The rule is 2 sponsorships that have been granted not less than 5 years apart,however there are exceptions to this rule and one is that the relationship must be longstanding of two years or more.So the answer is to have a relationship that is of at least 2 years before applying for a 309 visa.

One would agree that it does discriminate but one does not sponsor a local (Australian citizen or permanent resident)

If a sponsorship is cancelled or no "immigration advantage" is obtained it is still classed as one.

One would agree that the regulation needs to be reviewed and get rid of the retrospective section for a start. This would require changes to the legislation by the Federal Government, one would have to approach the local member first. Immigration matters are not a very popular subject with politicians as they do not win votes.

[david96]

The Commonwealth Ombudsman has notified the MRT that in their opinion and evidence supplied by Australia Post that the documentation arrived before the deadline.

The MRT now state they will hear the submission but would not accept any liability stating that the submision "may" have arrived prior to the deadline.

He is to get a video link hearing and an interpreter for his wife supplied by the MRT later in September.