Tag Archives: moving to australia

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. Iā€™m not an expert. This post pertains solely to my experiences and circumstances- yours will probably be different.*

Australian Partner Visas and the Road to Residency: Part 4

24 Mar

For Part 1, click here.

For Part 2, click here.

For Part 3, click here.

Some serious sh*t has gone down recently at immigration. Take this post as a warning and try not to make the same costly mistake.

The short version of the story:

Our migration lawyer made a very basic error and because of that, not only might my application for a spousal visa be denied, but I might have to go back to America (without my husband) and apply again.

The long version of the story:

If you’ve been following my blog, you know that in mid-2012, H and I hired a migration lawyer to help us with the application process for a spousal visa. I first arrived in Australia on a regular tourist visa (called an ETA), went back to America after three months for a short visit, and then returned to Australia on the same tourist visa.

Because airfare to America is expensive, we put in what’s called simply an “Application for Further Stay as a Visitor” which would allow me to stay for a period of six months instead of three. That would work out great, since our wedding would be in September, towards the end of that six month period, and we planned to marry in America anyway. This application cost $300, but we figured it was better than paying $1800 for airfare, right? We thought we were saving ourselves some money.

I printed out the details of this application and went on about my life. Shortly thereafter, we retained our lawyer and began the process of getting ready to apply for a spousal visa.

I could not apply before our marriage, because a fiancee visa can only be lodged off-shore. Our lawyer advised that we apply after returning from our wedding. I was sent to immigration to ask if my tourist visa had any “no further stay” conditions on it that would prevent me from lodging an application for another visa. It did not. The lawyer said we were good to go.

Fast forward a few months to after our wedding in September. I returned to Australia with my husband on what I believed to be my original tourist visa, thinking it had an expiry date of November 22, 2012. Plenty of time to lodge our application and get all our marriage documents in order and such. As it was, we ended up cutting it close, as we had a lot of trouble getting statutory declarations from our friends and family that were properly notarised. Our lawyer lodged the application on our behalf on November 21, a day before my tourist visa was due to expire. I was then granted a Bridging Visa C, or BVC.

Fast forward again until about two weeks ago. I had finally gotten a new passport with my new married name in it from the consulate and I went in to immigration to update my passport information with them. I also wanted to ask if I could apply for a Bridging Visa B, or BVB, instead of the BVC I was on because my grandfather in America is very old and very ill and if he dies, I wanted to be able to attend his funeral with my family. Or, you know, maybe even fly over there for a quick visit while he is still alive.

On a BVC, you have no travel rights. You are not allowed to leave Australia and they are really strict on that. The girl I spoke to said there were absolutely no exceptions. I asked her why it was that I was granted a BVC in the first place, since that is usually used for refugees and asylum seekers or people who had been here unlawfully.

You’re not going to believe her answer. I could hardly believe it myself.

She said I was on a BVC because I had been here illegally!!!

I thought, surely there must be some mistake! My application for a spousal visa was lodged the day before my tourist visa expired, so I couldn’t have been illegal! I told this to the girl and she said that my visa had expired September 29th, not November 22nd.

“But,” I objected, “I was on a tourist visa that was valid from 12 months from the date it was first granted. There’s no way I would have applied for it as early as September because I hadn’t even met my husband at that point and hadn’t made any plans to come to Australia.” And also, it says pretty clearly on my ETA that November 22nd is the expiry date. Right there in black and white.

Random photo of cute koala. :-D

Random photo of cute koala. šŸ˜€

“Not your visa,” she said. ‘Your visa wasn’t for twelve months.”

At that point, I couldn’t argue with her because I didn’t have that print-out with me, not having anticipated having that sort of conversation. But when I got home, I checked it, and sure enough, it said: “Expiry date: 22 Nov 2012”.

I immediately fired off a letter to the lawyer asking HOW ON EARTH HAD THIS HAPPENED?!?!?! Okay, I wasn’t that hysterical about it, but I did ask politely how my visa expiry was different than what we thought it was and how was it that I ended up being here illegally without knowing it?

He did not reply.

I went back to immigration about five days ago with H’s mother who is having visa problems of her own (she is a permanent resident) and while she was talking to her case officer, I asked someone about my alleged illegal status. I showed the girl the print out of my original ETA.

She told me that visa was cancelled when I applied for a further stay visa.

“I didn’t realise it was a different visa”, I explained, “I just thought it was an extension of the original one.” You see, when you apply for it, it doesn’t say anywhere that any current visa you have will be cancelled when the further stay is granted. It’s easy to assume that it is literally just an extension on how long you can stay on any on visit, more like a change of the visa conditions than an actual change of the visa itself. Also, nowhere does it say when you apply for it what your new expiry date is. The girl at immigration was a bit surprised that our lawyer hadn’t caught this and said I might want to file a complaint at www.mara.gov.au.

Then the girl dropped another bombshell on me that didn’t scare me as much at the time as it does now because I didn’t really understand what it was. She told me that because I was illegal when I lodged my partner visa, I now had to satisfy what are called Schedule 3 criteria. She said a letter had been sent to my migration lawyer about it five days previous. I said this was the first I had heard of it. She kindly printed out a copy of the letter for me and said that I had 28 days from the time it was first sent out to my lawyer to respond.

I left there feeling pretty ticked off. Not only had my lawyer not responded to my email about how it was that I ended up illegal under his watch, but he had also not passed on this information about Schedule 3 criteria to me.

For the record, this lawyer charges $400 an hour and prior to this mess, we had already paid him almost $13,000, which does not include the fees for lodging the application itself. For that kind of money, I expect him to get things right.

Why didn’t he check, double check, and triple check my visa status? Why did he not run it through VEVO to make sure or walk across the street to DIAC and ask? Why didn’t he send me to DIAC to check? We could have made this mistake on our own without paying him all that money, for crying out loud!

When I got home, I called H and told him what happened. He said he would call the lawyer. The lawyer took all day to get back to him. When he did finally call back, he admitted that he also did not know that the “further stay” was a separate visa to the ETA. Uh, that seems like a pretty basic thing that any registered migration agent should know…

I’ll be honest and say I haven’t like our lawyer from the start. He is loud, pushy, and self-important. He wasted a lot of our time (which we were billed for) just telling us how great he was and how we couldn’t do this without him. Numerous times, I left his office not having discussed things that I wanted to because he wasted our meeting time talking about how great he thinks he is. Another time, he screamed in my face for two hours because I hadn’t finished filling out the forms and blocked my way when I tried to get up and leave, before even hearing me out on why I hadn’t filled them out completely (because I wasn’t sure how I should answer a question in some cases or because I didn’t have the information to answer it).

H met with him in his office on Friday to discuss this problem. It was only after that that the lawyer then forwarded me the letter about Schedule 3.

H phoned me afterwards to say that the lawyer was now saying he didn’t know I had been on a “further stay” visa. Well, he did know because he took photocopies of all my paperwork and even if he hadn’t, he should have wondered how I was staying there for six months on a visitor visa. Or he should have just checked for himself what visa I was on and what my expiry date was, since that is what we were paying him to do. Like, duh?

Oh, and he also said he had no advice for us at this stage and wasn’t sure how to handle this situation and he’d need to check with someone else for advice. I guess that’s as much admission of guilt as we are likely to get from him.

If you’ve never heard of Schedule 3 criteria before, you are probably wondering what the big deal is and, more importantly for you, is it something you need to worry about in your own application?

This is Schedule 3, as described in the letter from DIAC:

Criterion 3001 requires that the application is made within 28 days of the last day on which the applicant held a substantive visa or from the time notice is given.

Criteria 3003 and 3004 require that the applicant satisfy several sub-criteria which include the following:
-the applicant is not (i.e. at time of application) the holder of a Substantive visa because of factors beyond their control’, and
-there are compelling reasons for granting the visa; and
– the applicant complied substantially with the conditions of their last visa (apart from any condition breached simply because the applicant ceased to hold a visa); and
-the applicant would have met all the criteria for grant of the visa in this application apart from the Schedule 3 criteria, on the last day they held a substantive visa.

Why is this a big deal? Basically, it’s a big deal because it’s something that can be used to deny your application. In other words, they will deny my application unless I give them a DAMN good reason not to.

I need to explain to them why I became illegal and show that it wasn’t my fault AND give them a compelling reason to grant the visa.

I’m told there are two ways to tackle this problem. One is to apply for a waiver. According to the letter DIAC sent, a waiver can be granted for “compelling reasons”, including cases where there is a child from the relationship or where the relationship has existed for more than two years. Neither of these apply to me, but a migration agent from up in Sydney said I could offer up reasons such as how it would affect our marriage, the financial burden it would place on us, how my Australian citizen husband might suffer without me, etc.

The second way is just to try to meet the criteria. For me, the hardest one to meet would be proving that I became unlawful due to factors beyond my control. Giving your application over to someone else to handle doesn’t absolve you of responsibility to make sure things are done right. Now, if you have Schedule 3 slapped on you because you became unlawful while you were in a coma in a hospital, that’s pretty easy to prove that there were factors beyond your control.

Since I wasn’t in a coma, I don’t have some stellar excuse as to why things got stuffed up. The lawyer didn’t do his due diligence. The immigration website where I applied for the further stay wasn’t clear. Then that website sent the details of my new visa by email to my husband, but not to me. And my husband just thought it was a receipt for payment and never forwarded it to me, so I never knew it existed. An honest mistake, to be sure, but it may not be good enough for DIAC.

If you fail Schedule 3, you have to leave the country and apply again offshore. For most types of visas, there is an exclusionary period of three years during which you cannot apply for any visas. For spouses, that may be waived, but you’d still be facing up to a year or more apart, just because the processing time for offshore applications is currently 12-15 months, PLUS you’d have to pay the application fee all over again, which isn’t cheap. Or you can appeal the decision to the Migration Review Tribunal, and I’m told the current wait time for a hearing is two years (!!!).

If, like me, you basically dismantled your life back home when you came to Australia, being sent back would be pretty devastating. I sold almost everything I owned and someone else is currently occupying my house, so it’s not like I could just evict them.

Some of my family has asked why H wouldn’t just come to America with me if I get sent back, but let’s be realistic. Who would look after his mother? Who is going to look after his property? Or why should he have to sell his property? Why should he have to quit a job that he likes and that pays reasonably well, a job where an entire development team is counting on his expertise and a job where a major hospital depends on him keeping their computer systems in tip-top shape? And more importantly, how would he even get a green card to come to America? I can’t sponsor him as a spouse. I don’t meet the income requirements laid out by USCIS since I’ve not had any income in America since coming here.

The only practical and realistic option would be that I go to America alone and we just tough it out. But I feel like that is very unfair.

It’s not like I’m some criminal or dishonest person who was trying to get around the immigration rules. On the contrary, I bent over backwards to get everything in by what I thought was the deadline to avoid becoming unlawful. I left the country when I was supposed to.

I know why DIAC has these rules in place and I’m glad they are trying to weed out cheaters, but I think it is a bit harsh to give someone a Schedule 3 just because they made a genuine mistake. I know DIAC is under strain and they have way more applicants than they have the manpower to process, but it would be nice if they would take some of these things on a case by case basis. Splitting up H and me at this point would basically ruin our lives together as a family and nobody at immigration even gives a rat’s behind.

Anyway, that’s the latest development in what I thought would be a relatively boring migration saga. I suppose an unexpected plot twist always makes for good reading, though, right? I’m hoping to have an update on the prognosis of this situation sometime next week, so cross your fingers for me, please! We need all the luck we can get.

*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. Iā€™m not an expert. This post pertains solely to my experiences and circumstances- yours will probably be different.*

Australian Partner Visas and the Road to Residency: Part 3

17 Dec

For Part 1, click here.

For Part 2, click here.

If you’re applying for a partner visa within Australia (or just about any other substantive visa for residency), you will be required to submit a police check from your home country and any other country that you’ve lived in for at least a year (including Australia if you’ve been here for a year or close to it by the time you submit).

For Americans, that means you need to get a criminal records check from the FBI. I’ve already mentioned this previously, but I’ll walk you through it again in more detail, along with the fingerprinting process.

You will need to submit an Identification Record Request to the FBI. The instructions for doing so can be found here, and all the relevant links you need for the documents can be found on the right side-bar.

Most people can probably figure out how to fill out the forms required (if you are paying by credit card, which is easiest from abroad, note that the credit card form needs to be downloaded separately- see the sidebar with all the links).

The biggest hassle is getting your fingerprints done. As I’ve said before, there is only one fingerprinting facility in Melbourne. You must make an appointment to have your fingerprints done. The wait time for fingerprinting in Melbourne can be 2-3 months. If you can’t wait that long and are willing to travel, there are several regional offices that you can contact to see if you can get in earlier.

You will need to take your passport with you, along with the fingerprint card used by the FBI. It’s fine to print this from your home computer on standard paper. I recommend printing at least two copies and having two sets of fingerprints taken, just in case you get some prints that don’t come out right according to the FBI regulations. Think how much it would suck to wait all that time for an appointment and travel all the way to the police station, only to have your prints messed up somehow and not have a spare card for them to use. I brought four with me (only needed two), just because I used to be a Girl Scout and I like to be prepared.

Equally important is to arrive early. Yes, your appointment might not be til 11am and you might not be seen until 11:30, but aim to get there at least 15 minutes early so you can check in and they can go over your paperwork.

If you arrive late, even just a little bit, you risk losing your appointment. I was in line behind a woman who was five minutes late and throwing a fit because she hadn’t been able to find a parking spot and was upset that the police wouldn’t accommodate her anyway because their entire day for fingerprints was booked up. So it’s much better to arrive early, and if you are a lot early, there are a few cafes inside the building you can hang out at.

It isn’t too difficult to get there. It is within walking distance from Southern Cross train station and several trams run by or near to it. If driving is your thing, there are parking garages available (but not much in the way of on-street metered parking).

If you GPS the address (637 Flinders), it will take you to a police station at that address. But this is not where you get your fingerprints done. Instead, you need to enter the World Trade Centre building from the Siddeley Street entrance (there is conveniently a parking garage located right next to this entrance) and go up the escalators, where you will see the fingerprint facility right next to the Victorian Police Museum.

Location of Melbourne fingerprinting facility

Location of Melbourne fingerprinting facility

(By the way, if you’ve never had your fingerprints taken before, it can be quite messy, so don’t wear anything that you’d be upset about getting ink on it.)

Now, when I called to make an appointment, I was told the charge for fingerprinting was $141, but when I got there, they told me there was no charge for the service. So I didn’t actually pay anything, but I’m not convinced it wasn’t a fluke. Bring your credit card, just in case.

Once you’ve finished with your fingerprints, you’re good to go. They’ll be given to you in an unsealed envelope, to which you can add your FBI form.

Lastly, go over the checklist and make sure you have everything you need, then post it all to the FBI at:

FBI CJIS Division ā€“ Record Request
1000 Custer Hollow Road
Clarksburg, WV 26306

And then sit back and enjoy waiting on American bureaucracy! šŸ˜€ It will be up to six weeks before you get a response back.

For Part 4, click here.

*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. Iā€™m not an expert. This post pertains solely to my experiences and circumstances- yours will probably be different.*

Australian Partner Visas and the Road to Residency: Part 2

21 Nov

For Part 1, click here.

Yesterday, my lawyer finally submitted my application for residency to Immigration, two days before my visitor visa expires. While it is incomplete, still missing the results of my police checks from the US and Australia, they did accept it as a valid application and I was granted a Bridging Visa C (or BVC).

Usually, BVCs are for people who are in the country unlawfully and want to become lawful before they come to DIAC’s attention. I got a BVC because my visitor visa was about to expire and, obviously, I would like to stay in the country while they process my application for a spousal visa. The BVC is an electronic visa, so you won’t get a a stamp in your passport or anything like that.

It’s kind of a crappy visa, although it’s certainly better than no visa at all. You can’t work with a BVC, unless you can demonstrate financial hardship. You also cannot travel out of the country and re-enter on a BVC. As soon as you leave Australia, the BVC expires. So I’m hoping there are no family emergencies in the next few months!

Today, I went for the required health check. There is only one place in Melbourne that does immigration health exams and that is Medibank at 501 Swanston St. You can book over the phone or online at medibankhealth.com.au. I booked online and it was pretty simple. You do have to pay at the time of booking and it’s $332. I’ve heard it’s a lot more expensive to get the health check done overseas and that sometimes, even if you do the health check overseas, you still have to do it again in Australia

When you go to health exam, you’ll need to take your passport and forms 26 and 160. Fill it out before you go because you’ll be expected to have them completed when you check in. And bring something to read because you’ll be there for about two hours and spend a lot of time in waiting rooms.

The first thing they will ask you to do is give a urine sample. If you’re stupid, like me, you might have peed before you left the house because you were worried you’d wet your pants on the tram if you didn’t and won’t need to go right away. If that’s the case, you can always do it at the end of the exam, but they like to get that out of the way first.

Fortunately, eye exams these days are a bit more civilised than they used to be. You won’t have to worry about someone jabbing a buttonhook into your eye.

Following that, they will check your height and weight. Then they will give you a brief eye exam where they just ask you to read the letters on a chart from a distance. They made me read the very bottom line of the chart. I have no idea how well I did.

Next is a blood draw for an HIV test. They give you a form to read about what HIV test results mean and you have to sign a form saying you understand it. I told the nurse that my personal rule is that she gets three sticks with the needle and if she can’t do it in three tries, I’ll scream for someone else. She assured me that she could do it on the first try, but that they only get to try twice before they are required to get someone else. She got my vein on the first try, which was impressive, because I have roll-y veins and most nurses need at least two sticks to catch one of them. And if you are prone to passing out from blood draws or needles, they even have a bed you can lie on while they do it. I’m fascinated by medical procedures, though, so I opted for the chair so I could watch. šŸ˜€

After that, you’ll be called in by an actual doctor who will ask you about any prescriptions you are taking and what they are for. Then you get sent behind the curtain to strip to you underwear, lie on the bed, and cover up with a sheet. The doctor comes and takes your blood pressure, listens to your heart, feels your abdomen, and looks at your feet. Then you can get dressed and go queue for your chest x-ray. The whole thing is so non-intrusive that you can probably even skip shaving your legs beforehand.

The chest x-ray is to check for tuberculosis. And obviously, you should tell them if you are pregnant or might be pregnant because then you’ll need to reschedule the x-ray for another time. I’m pretty sure I don’t have tuberculosis, but if I did, I’ve been in Australia for almost a year, coughing all over people, so if I had germs to spread around, believe me-

You have to check in again with the chest x-ray people and when they call your name, they take you to a small cubicle where you undress your top half and give you a gown to put on. Then you’re supposed to wait in your cubicle until they call your name. Someone got yelled at for coming out of his cubicle when it wasn’t his turn! I guess that’s for privacy reasons. When it is your turn, you’ll be taken to the machine and you press your chest and shoulders up against it where they tell you. Then they tell you to take a deep breath and hold it. The machine goes off and then you’re done and can go get dressed again.

And that’s it! After that, you can go home and they send the results to you in the mail.

Lastly, I’ll just mention Australian National Police Checks, because I don’t think I mentioned them in the last post. You only need to do this if you’ve been in Australia for a year or if it will be a year by the time they get around to processing your application, as is my case. You’ll want to visit this link for information about the police checks.

You might look through that page a few times before you figure out where you can go to download the application form, so I’ll save you the trouble: it’s here. You can do it online or print it, fill it out by hand, and post it to them. You will need certified copies of 100 points worth of the documents they ask for proving your identity (a passport, for example, is worth 70 points). If you do the online application, you will need a way to scan those documents, convert them to pdf files, and email them in. I chose to do it by hand and mail it because I don’t have a scanner. (It was mailed last week by Express post and they have already sent me an email saying my results are in the mail.) The cost is $42. For immigration purposes, you generally do not need to submit fingerprints, so only do that if you are asked for them.

For Part 3, click here.

For Part 4, click here.

*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. Iā€™m not an expert. This post pertains solely to my experiences and circumstances- yours will probably be different.*