Australian Partner Visas and the Road to Residency: Part 5

11 Apr

For Part 1, click here.

For Part 2, click here.

For Part 3, click here.

For Part 4, click here.

In my previous post on this subject, I mentioned how and why I came to be stuck with having to satisfy Schedule 3 requirements and explained that the outlook was rather bleak.

I’m pleased to say that story has a mostly happy ending, resulting in me being granted a temporary residency visa! Woohoo!

The only unhappy part to the ending is owing our migration lawyer another $14,000. Ouch! But I guess he got the job done, which is what matters.

Here’s what went down. With the help of our lawyer and a barrister who specialises in immigration law, we filed three statutory declarations, along with several supporting letters, with DIAC in response to their request for information. We decided to ask for the waiver, but also supply all the information to satisfy the Schedule 3 requirements at the same time.

To waive Schedule 3, the applicant must show that there are “compelling circumstances” to warrant a waiver. These circumstances are defined as 1) having been in a relationship with the sponsor for two years or 2) having a child.

However, there is legal precedent which states that compelling circumstances cannot be limited to just those two items and there have been instances where an applicant was found to have compelling circumstances for other reasons, such as health issues, etc. In the letter our lawyer wrote, he outlined these precedents and made his case for why other circumstances must be taken into consideration.

In our case, our compelling circumstances, as outlined to DIAC, were:

1) H’s frail aged mother requires daily care, which I provide (supported by letters from her and her GP)

2) H would feel compelled to leave Australia with me if I were sent away

3) That would cause harm to his employer (supported by a letter from his boss)

4) It would put both H and his mother in a bind, in regards to her need for care and his need to be with me

We left out any references to financial hardship, as the lawyer did not think DIAC would care as much about that and he felt it would detract from the bigger issues.

Our lawyer advised that, failing to get a waiver or satisfy the requirements, I would not have to leave Australia, but would be able to appeal to the Migration Review Tribunal. In such a case, I would be on a bridging visa until my hearing, which would be in about two years.

But fortunately, that wasn’t an issue because my case officer at DIAC was apparently happy enough with our explanations. I was expecting to wait at least a few weeks, if not months, to hear what the decision would be.

Imagine my surprise to get a response just two days after filing our paperwork! Not only did my case officer say that the waiver was granted, but that my temporary residency visa had also been granted. Hooray!

However, even though I am now officially a resident, I still have to wait another two years to become a permanent resident and at least two more years after that to become a citizen, so this is by no means the last post in this series!

*Disclaimer: None of this is legal advice. If you have questions about your own visa application, you really should talk to a licensed migration agent. I’m not an expert. This post pertains solely to my experiences and circumstances- yours will probably be different.*

24 Responses to “Australian Partner Visas and the Road to Residency: Part 5”

  1. moi April 11, 2013 at 7:29 pm #

    the 14k is a bummer but yeah good result. congrats.

    • housewifedownunder April 12, 2013 at 12:53 pm #

      Thanks. 🙂 About the money, we just keep telling ourselves that being in debt is better than being apart.

      • moi April 12, 2013 at 8:15 pm #

        until you argue then someone will mention the 14k lol.

  2. Cristin April 11, 2013 at 7:37 pm #

    Congrats! Such a relief to have visa stuff sorted, and it sounds like you really had a time of it. PR is a breeze compared to the temp visa!

    • housewifedownunder April 12, 2013 at 12:54 pm #

      Thanks! I think most people have a much easier time. Every other immigrant I’ve talked to was shocked at how much trouble we had. Part of it was that we took a rather unconventional route in applying for the visa, but despite that, I do feel like it was more of a hassle than it should have been.

      • Cristin April 13, 2013 at 8:04 am #

        Yes, mine was a complete breeze in comparison to your situation!

  3. julitownsend April 11, 2013 at 10:18 pm #

    Success – well done to all concerned. Shame about the cost, although we spent thousands getting our green cards in the US, and would have had to wait ten years before we could apply for citizenship, but fortunately, that wasn’t something we needed to do.

    • housewifedownunder April 12, 2013 at 12:56 pm #

      Thanks! You’re absolutely right about the US. Every time I think of how much the immigration process here sucked, I remember that it would have been a lot harder and more expensive to bring my husband to the US. I tried it once before, about ten years ago, when I was married before to another foreigner and we were not able to get a visa for him, due to the cost. My husband has recently been asking if we should try to get him a US green card, but I told him we better wait until we have recovered from the financial disaster caused by my visa first.

  4. Yolanda Joy April 12, 2013 at 1:22 am #

    Glad it all came together in the end – can not believe your migration lawyer charged you a further $14,000 though. Actually, I’m surprised you went back to him at all after part 4 of this series! But still, congratulations 🙂

    • housewifedownunder April 12, 2013 at 12:58 pm #

      We actually looked at other migration lawyers, but they weren’t going to be that much cheaper and it would have drawn the process out to switch to someone new. I told my husband it was his decision and when he went in to discuss it with the lawyer, it turned out the lawyer had already prepared most of our submissions, so we would have been on the hook for a lot of money to him anyway at that point. With our backs against the wall, we didn’t have a lot of leverage with which to negotiate, so my husband felt that taking the path of lease resistance was the best option.

  5. astimegoesbuy April 12, 2013 at 9:18 am #

    Once you have the Temporary Residency it’s pretty hard to not get the permanent residency and then citizenship. The only drag is having to file more paper and spend more money! However, I bet you could do the next steps without a lawyer and save yourself a ton of money. I did mine all on my own…well the Fashion Mister helped with the paperwork but the expense then was only the cost of filing.
    Cheers,
    Laura

    • housewifedownunder April 12, 2013 at 1:00 pm #

      What kind of paperwork did you have to file to get PR? I was under the impression that it just rolled into a PR automatically after two years unless they decide to reject you.

      • astimegoesbuy April 12, 2013 at 2:49 pm #

        I don’t remember it being anything complicated but was mostly a letter stating you want to proceed to PR status and it seems there was a requirement for an updated physical but because I work in a hospital I had one of the docs I work with sign off on it.

      • Eizzi June 2, 2013 at 12:02 pm #

        Stat decs from family/friends, proof that you live together/are still together, and a new police check (possibly medical too?), I think. I don’t think it would hurt to keep some joint bank statements and utility bills, etc. Just a smaller version of your TR application evidence. Just to be safe.

  6. Cosette April 12, 2013 at 9:35 am #

    Congrats! Finally, finally.

  7. Miss Y April 12, 2013 at 12:06 pm #

    I can’t believe you had to fork over so much money to that lawyer, especially after he screwed up which caused the mess to begin with. I would of been fuming.

    • housewifedownunder April 12, 2013 at 1:02 pm #

      We were and still are fuming about it! But another lawyer would have cost just as much and he had already prepared the submissions for us, so my husband felt like we didn’t really have any other options. So while we are no longer lying awake at night worrying about me being sent back to America, we are now lying awake at night worrying about our debt caused by all these legal bills. 😦

  8. loulouloves April 12, 2013 at 6:55 pm #

    Welcome officially! Congratulations. That is amazing news!!!!! We haven’t heard diddly about my husbands visa currently getting process in Berlin. It’s such a frustrating process, I’m glad it’s over for you guys now. Bonza.

    • Bingo May 16, 2013 at 1:10 pm #

      Hi

      CAn you post the letter DIAC sent about being allowed to apply for a waiver. I didnt theink you had a choice in the matter I though there was only one option and that was to meet the schedule 3 criteria. Where does it say you can apply for a waiver?

      Your help with be much appreciated

      • housewifedownunder May 17, 2013 at 1:06 pm #

        I suppose it is possible that not everyone is allowed to apply for a waiver, but you’d have to ask your case officer (which I would advise, anyway, since they are the only ones who are really qualified to comment on your particular case).

        The relevant text of my letter reads:
        “Before your application is decided, you have the opportunity to put forward any information which you wish to be considered as ‘compelling reasons’ why the Schedule 3 criteria should be waived in your case or, alternatively, why you feel you can satisfy the Schedule 3 criteria.

        “Regulation 820.211(2)(d) states, however, that these criteria can be waived if there are ‘compelling reasons’ for a waiver. Guidelines state that ‘compelling reasons’ includes the existence of a child of the relationship or where the relationship between the applicant and their sponsor has existed for a minimum of two years. Compelling reasons are not limited to these circumstances and case officers will consider whether or not other compelling factors exist.”

        If you’re not sure, ask your case officer.

  9. Kttykat November 4, 2013 at 3:47 pm #

    Congratulations on your grant.

    We did our own application for a 309 partner visa from the US, after getting married in October 2012. We applied at the end of October 2012 and was granted our 309 Temporary visa in April 2012. The current grant time for Washington applications is around 5 to 7 months, not the year or more that you were afraid of. In our case it took us 5½ months to get our grant.

    We were lucky to beat the visa price rise at the start of 2013 and paid less than $3000 total for our visa application, including all the medicals, police checks etc. We now consider ourselves even luckier that we didn’t engage a lawyer to do our application! The $28000 you paid for your application is simply outrageous. Especially since it sounds as though you had to do most of the work anyway and you didn’t get what you paid for, which was the oversight. Doing our application ourselves meant that we knew what was happening at every step of the process, though it wasn’t easy, I am glad we did it that way.

    I didn’t wait in the USA even though we went down the 309 offshore partner visa application route. I came to Australia on an ETA in January with my husband. As a result though I had to leave Australia and go to New Zealand just before the 3 months was up to renew my ETA and the immigration department at my request was kind enough to grant my visa whilst I was in New Zealand for a few days, which fulfilled the requirement of being overseas for the grant of the 309 offshore partner visa.

    The second stage for the permanent partner visa doesn’t automatically roll over, you should have a look at this check list: http://www.immi.gov.au/contacts/forms/partner/_pdf/checklist.pdf

    It shows you exactly what you will need for the second part of the process in a year or so.

    Kttykat

  10. Jade Just December 11, 2013 at 1:43 pm #

    Hi,
    We have just been sent an email to either meet schedule 3 criteria or waive it (my husband is the applicant) 😦 I’m so devastated.

    Like you we are looking to waive it. We just bought a block of land and are no way in any position to fork out for a lawyer to help us.

    I’m wondering if you can please give me any advice about how long your submission was and what was included? It would be absolutely amazing if you could as I’m desperate for any advice – I don’t want to go to England in the current economic climate.

    My personal email is jade@scoop.com.au

    Thanks in advance,

    Jade

    • housewifedownunder December 14, 2013 at 5:15 pm #

      This really isn’t something to mess around with. You don’t necessarily need a lawyer, but you ought to get yourself a migration agent ASAP. If you mess it up, there is no appeals process. DIAC doesn’t care about your financial position (unless you husband is the main breadwinner and you rely on him for financial support). And if you both have to move to England, you’ll probably be selling that land, anyway.

      I don’t know if I still have a copy of the submission, but I can try to find it. However, you really, really need to get some professional advice, as my situation is likely different to yours.

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