A lot of the times, when you least expect it, you meet someone who you truly treasure after having gone through a challenging relationship. Today’s case study is a Partner visa application that my colleague, Pip Panasbodi (MARN 9896337) submitted to the Department. This case study is a true story with a happy ending.
Candice (*name changed to protect identity) is a Thai Citizen and a Thai passport holder. She was originally sponsored on a Partner visa by an Australian Citizen (‘Albert’; *name changed to protect identity*).
Before meeting Albert, she had two children from a prior relationship. She wanted her two children to be sponsored under her Partner visa application, but Albert did not want Candice’s children from her previous relationship to be added under her Partner visa. This means that Candice left the two children in Thailand and they were not sponsored under her Partner visa to Australia. It has never occurred to her to sponsor her children to Australia other than under her Partner visa application.
Albert and Candice were married under Thai Law in Thailand. After being married to Albert and returning to Australia, Albert and his 8 family members began to ill-treat her like an unpaid domestic housekeeper. Their initial warm and welcoming personalities immediately changed.
When she was sick, no one assisted nor cared for her. She even had to continue with the housework when she was sick. On top of that, Albert demanded sex from Candice, even when she was unwell or not in the mood.
Candice worked from 6am till 10pm at two different restaurants everyday. Albert provided her with very little money and demanded Candice’s wages from her as soon as she started working.
In the middle of 2013, they celebrated their 3rd year of marriage. During this period, Candice attained her Australian Permanent Residency from her Partner visa. Mind you, this is after 2 years worth of abuse from Albert and his family members.
In the middle of 2014, after being threatened by Albert, Candice filed for divorced at the Royal Thai Embassy in Canberra. Candice and Albert had no children together. She then moved in with a new partner – the Applicant in this case study. After two months, the Applicant and Candice were legally married under Australian Law.
Kevin (*name changed to protect identity) is a Thai Citizen and a Thai passport holder. Kevin and his first wife had legally divorced before he met Candice. Kevin and his first wife have no children together.
After being divorced for 2 years, Kevin and Candice first met for the first time at Kevin’s workplace when Candice was looking for a job. It just so happens that Kevin was managing a farm with over 30 workers working under him. After understanding her situation with Albert, he invited her to live on the farm with him. Little did she know, Kevin had a history of overstaying in Australia after his Australian refugee visa application was refused.
As with most complicated partner visa cases, there were a number of questions raised by Candice and Kevin in their initial consultation with CP International.
Let’s look at these one at a time:
Q1. How long does Candice have to wait before she can sponsor her current husband?
Under Australian Migration Law, Candice has to wait 5 years from the day her own Partner visa application was lodged. This means they will have to wait for another 2 more years before Candice is eligible to be a Sponsor.
We can attempt to apply to waive this 5-year limitation, however, this decision to waive this limitation will be dependent on the Department’s discretion. If it is unsuccessful, we will have to appeal at Tribunal (currently known as Administrative Appeals Tribunal or ‘AAT’ for short).
Q2. Is it a problem that Kevin has been staying unlawfully? (in addition to his refugee visa being refused?)
Firstly, having his refugee visa refused, Kevin is already barred by section 48 of the Migration Act 1958 (Cth). This means he is not allowed to apply for a number of visas. After his current visa expires, he must depart from Australia. If he does not depart from Australia, then he will be known as overstaying without a valid visa.
Overstaying in Australia without a valid visa can result in Kevin being removed or deported from Australia at any time. After being out of Australia, Kevin will also be not permitted to return to Australia for at least another 5 years. Most of the time, Australia will not allow him to return to Australia, even for a visit. Other countries will also have access to such information, in turn will also refuse his visa application(s) to their countries due to his travel history and actions.
In terms of being an unlawful non-citizen applying for a Partner visa, individuals will have to come to undergo additional criteria. This is known as Schedule 3. The removal of a Schedule 3 comes down to compassionate and compelling circumstances that are unforeseen and not within Kevin’s control. In this case, Kevin does not have this situation, thus making it difficult for him to fulfil the onshore Partner (Subclass 820) visa application.
Q3. Can Candice add her biological children from her first marriage onto Kevin’s Partner visa application, even though the children are not Kevin’s?
Candice’s two children are 8 and 12 years old, respectively. They are under 23 years old and are defined as dependent children under Australian Migration Law.
According to Australian Migration Law, the definition of a dependent child(ren) includes children and stepchildren of a prior or current relationship. This means Candice can attach her biological children under Kevin’s Partner visa application. However, Kevin is currently in Australia and the children are currently in Thailand. This means that both children have to travel to Australia to be attached to the onshore Partner (Subclass 820) visa application. Or for Kevin has to go offshore to Thailand and have the Partner visa application made offshore (outside of Australia).
Q4. Can Kevin lodge an application while remaining unlawfully in Australia or does he have to go back to Thailand first – and why?
Kevin can lodge the application, but this does not mean it will be granted by the Department (i.e., it may be refused), because he does not fulfil the criteria for Schedule 3 waiver. But, if we bring the children on Child (Subclass 101) visas and then apply for the onshore Partner visa for Kevin, this does not mean he will be able to get the visa as well. Thus, the better solution is for him to return to Thailand and lodge the Partner visa when he is outside of Australia. That way, his application will not be barred on Schedule 3 grounds.
In Kevin’s case, he also had a terminally ill mother back in Thailand and he wanted to be by her side before she passed away, so Kevin decided to return to Thailand and file from offshore, and wait there for his offshore partner visa (subclass 309) visa to be granted, with Candice’s two children being attached to his application.
Q5. Aren’t there laws against domestic violence to protect men/women from being abused in relationships such as Candice’s? If so, could have Candice gotten her PR after reporting being abused?
There are many reasons for individuals to stay in a violent relationship and this varies for each person.
- The fear of more violence and the fear of their abuser.
- The safety for the individual and their child(ren).
- Difficulty in obtaining legal assistance.
- Being immobilised by psychological and physical trauma.
- The cultural/religious beliefs to maintain the family as a whole at all cost.
- Hoping and believing the perpetrator’s promises that he/she will change.
- The repeated threats to kill or seriously injure the individual, their family members or their children if they attempt to leave the relationship.
- Unable to tell someone to report, because they cannot speak English.
- Does not know that there is such help available.
Many Temporary visa holders on Partner visas are unaware that they are still able to obtain permanent residency after reporting their partner for domestic violence or abuse.
In the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth), it specifically states that the applicant(s) are to be given the opportunity to raise their concern of domestic violence in the relationship. This has to be done by an independent expert. The independent expert is a third party that will assess if family violence has occurred.
After the Department receives the independent’s expert opinion, the Department then can notify the applicant of the outcome and provide a copy of the independent expert’s assessment and invite the applicant to comment within the prescribed period. A permanent visa grant will only be given if the person satisfies the evidentiary criteria for the Family Violence Provisions.
How we helped Kevin and Candice
After consulting with Pip, Candice and Kevin decided to engage our services as Australian Registered Migration Agents rather than trying to “do it themselves”.
The reason for that is that as migration agents, we come across similar situations on a regular basis. We are able to use our knowledge and experience to successfully navigate and communicate the situation to the Department. This will assist in obtaining a favourable migration outcome (i.e., getting the visa!).
We also know the potential issues to watch out for – for example, trying to lodge Kevin’s partner visa onshore and separately lodging her children’s visas offshore. This would have been costly and disastrous, yet that is what many people try to do when they do not understand how Australian Migration Law and Policy works.
The Happy Ending
In the end, the hard work of both the clients and Migration Agents paid off, as Kevin and Candice’s two children were reunited with Candice on a Temporary Partner (Subclass 309) visa, exactly 12 months after lodgement of their combined Partner visa application. They are currently waiting for another two years before the Department sends an invitation for them to apply for a Permanent Partner (Subclass 100) visa.Have questions about your Australian visa application or status? Want to apply to study, work or live in Australia? Get in touch with the Dr Visa Team at:
- LINE: @cpinter (Thailand/global) or @cpintermel (Australia)
- Phone: +6622781236 (Thailand) or +61396025355 (Australia)
- Email: email@example.com
- Or Book a Consultation with an Australian Registered Migration Agent or Offshore Migration Consultant today!