Any alternative VISA

[kawaii]

Hi all..

i am hopeful that I'd be able to obtain helpful information for my case. I am in a 5 year long distance relationship. My boyfriend/fiance used to work in the USA and apparently his working permit was not granted last year so he voluntarily left USA and flew back to the Philippines. He's 10 years older than I am and he has been married since 2001 but separated... Divorce takes time and very expensive... they never had kids and his wife is now living with someone else. We had been planning to be together but the current situations and past circumstances are limit us to what we could possibly do to pursue our plans to live together. Due to work and distance we've only seen and met each other. we only spent a few days with each other as i didnt have much days to spend for annual leave.

We havent spoken to any immigartion lawyers as yet, as consultations that ive seen over the web are to rated per 15 mins - half an hour...

We have been maintaining our relationship ..which is also expensive due to phone bills :( If only we could be given the chance by the Immigration to prove that we are serious to live with each other as husband and wife... if we could be given a chance, once he's with me here, we'll be able to save and he'll be able to annul his marriage and we would be free to marry, thats our plan.

But how are we going to start if every chance is grey for our case...

I would be the happiest person on earth if somehow someone could shed some light and bring hope to our problem... all we want are simply, to be together and start a family and to live like any normal couples ot there. I hope people wont judge our relationship not being genuine.. as we've been through everything through thick and thin... we are both not getting any younger,, how much longer we have to wait till we could be together......

i have also thought of moving back to the Philippines.. easier! but i have a son with me here in Australia,and I know that he has more oppurtinities here when he grows up rather than the Philippines.

any advise would be muchs appreciated.

Thanks in advance

[Zoltan Bertok]

We have been maintaining our relationship ..which is also expensive due to phone bills :(
Student visa and a cheap course of study used to be the solution, but not any more. Things changed recently. I'd recommend you to contact an agent who is familiar with the Philippines. I feel that there is more than meets the eye.

[downundervisa]

Hello Kawaii. And welcome to the forum.

You're in a difficult situation, due to him being still married. Divorce is illegal in the Philippines as you know, and annullment is not the same as "no-fault divorce" in Australia. There are a lot of things that need proving, and it all takes time.....and money. P350,000 is a quote I'd heard recently (a bit over AUD$8,000.....or about 3 years pay for most professionals in the Philippines). And if they know a westerner is in the picture somewhere, chances are the costs go up.

Despite the costs and the time, annullment is still something that should be considered. Has he had any legal advice (in the Philippines) about this? Let me know if you would like the contact details of a lawyer in Makati who could help?

If his marriage was annulled, then he could apply to come here and marry you via a fiance visa.

There is one other option you should consider, and that is to apply for him to come here as your defacto (living together) partner? If this were the case, then the existence of his marriage would not be an obstacle. Yes, it would still matter, but with a properly prepared case should not stand in the way of him coming here. He comes here. And he can organise a divorce at his leisure.

However, you need to prove that you have a genuine relationship and committment to each other, and it's the Department case officers who must be convinced. I don't believe you could convince them with what you have now, and the best way to do this would be if you were to go and live with him in the Philippines for a period of time. Not permanently, but long enough for you to be able to show your commitment. We would be happy to work with you to formulate a strategy.

As for your son? Yes, living there indefinitely does not offer him the best choices in life. But living there for a period of time would do no harm. Living in another country tends to broaden the mind, and helps them to see life from a different angle. And you know as well as I do that there are some good values (studying hard, respect for elders, and love of family) that he would benefit from by being immersed in for a time?

Again, I'd be happy to work with you if you would like to contact our office?

Regards,

Jeff Harvie

[kawaii]

Thank you so much Zoltan. I have also spoken to a friend and suggested the student visa is the easiest way for my case... but my boyfriend, who is currently unemployed could not afford the amount of money required to sustain the a student visa... although i must admit that student visa indeed is the easiest of all to get him here.

Yes, he has seen a few number of lawyers. The least amount that he was quoted : P150,000 and ETA of his annulment case is 1-2 years inspite of the fact that his marriage was never consumed at all.

Thanks Downundervisa, yes, we are like in a box without too many options. I dont blaim the Immigration officers if they'd have any doubt with our relationship being genuine.. but then again, there's more than what meets the eye, as per Zoltan's feedback... at this stage, it's true that what we currently have may not suffice the genuinity of our relationship but one of our biggest contenders in the situation is the resources that we havent got much at this stage.. so im hopeful that we could work a way around this.. I would be happy to contact you in the next few days.

rest assured that our communication is maintained. Daily. It's expensive, he doesnt have internet at home so we communicate via mobile phone calls... the huge amount of bills mean nothing compared to being each other. For 5 years, we speak on the phone in the morning lunchtime afternoon and evening daily. we could have saved a million without phone expenses.. my point is, wouldnt this suffering be enought to satisfy immigration... :( it is just frustrating that due to infavorable consequences of his past and our current limitations we couldnt start living a life together. Again id be keen to speak to you Downunder, and I was wondering if you could give me a quote of how much we will be spending if we go ahead.


As for the idea of going to the Philippines temporarily.. it's a little difficult... coz that would mean i would need to leave my current job., plus my son is going to school already, if I bring him along with me, his schooling will be much interfered, although yes i agree that bringing him to another country would develop his social skills and personality.

[downundervisa]

The issue is that migration decisions are governed by the Law. And the Law is objective....or at least it strives to be. It's done that way to make sure that everyone is treated equally......not always fairly.....but at least equally. And to ensure this happens, a set of objective criteria is put in place. And the Case Officers are only supposed to make decisions in accordance with those criteria. And if we feel they haven't acted fairly, we can argue based on those criteria.

The regulations state that a defacto relationship is:

(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).

You truly have my sympathy. I can only imagine how upsetting it must be for you. But if I was to make a case for you, I need to argue according to the criteria set out in Law. I can talk about your suffering, but that's not in the criteria.

They will ask: "Do they live together?" The answer is no.

They will ask: "Do they NOT live separately and apart on a permanent basis?" The answer is no again.

And that will be the end of the argument.

You have two options. One is for him to get an annullment, and the second is for you to go and live with him for a while.

I know it sounds inflexible, but the Law is inflexible. If I was to tell you anything else, I would not be acting in your best interests. If I was to take your money, make an application which did not argue that you met the criteria, then I would be wasting your time and your money. And I won't do that.

Yes, please do contact me when you can. I'm happy to help you. But you must understand that I can either help you and tell you the truth.....or tell you it will be easy and that you can do whatever you want. I can't do both.

Ingat.

[downundervisa]

Student visa and a cheap course of study used to be the solution, but not any more. Things changed recently.

And yes, what Zoltan said is absolutely correct. Student visas are a very expensive option these days. Not worth considering.

[kawaii]

Hi again downundervisa, thanks for your patience.

We will consider both options... well we have to.

And i truly appreciate your sincerity and honesity. I have bookmarked your website as well, ill be in touch.

Thanks again.

ingat din po.

Kawaii

[Robert]

(ii) do not live separately and apart on a permanent basis; and


Jeff, given what appears to be a dead end situation, Can Kawaii submit a 309, as defacto spouse and assert that they are for all purposes in a defacto relationship in mind, soul and with intermittent physical togetherness, meeting the regs definition of “ defacto spousal relationship", except for the fact they could not live together under the same roof for reasons beyond their control, no matter how hard they have tried. At the primary decision level it may be a miracle (miracles do happen) if the case officer accepts the assertion and grants the visa. Submit a detailed tear jerking compelling reasons which prevents them from living together and that their living apart is temporary. Call on the decision maker to exercise judicial discretionary decision and to determine that they are in defacto relationship, except they live apart temporarily due to regulatory reasons, compelling socio-economic grounds, and all other reasons one can think of. If the delegate refuses the visa application, there is the MRT which again is a fair gamble. MRT tends to use the principle of substantial natural justice and will give serious consideration for the reasons they are living apart, and if their living apart is permanent or temporary. I am not sure how the previous marriage that is yet to be formally annulled will impinge in the claim for defacto relationship.

Is it worth a try at a minimal cost? One would have to trawl through previous MRT and court cases for any precedent ruling.



Robert K chelliah
www.austmigration.com.au

[downundervisa]

This IS Manila we're talking about, Robert. It's hard enough to get compassion and understanding for a standard case out of their case officers, especially locally employed staff. I could see it having a very high chance of failure at application level. Whilst it may well be overturned at MRT, it could be more than a year before it gets heard. Therefore the whole process could take a couple of years to finalise, and at considerable stress and with no certainty.

I will be doing something similar to what you've suggested (after discussions with you, which I appreciated) for an older couple. But in their case he is 65 and is in remission from 18 months of treatment for cancer and is not up for travelling or living in Philippines for any period of time. They also have three tourist visa applications which were refused for some fairly dodgy reasons. In their case, yes they have strong reasons for not being able to be together, and have evidence of considerable effort shown to do so.

I think that while there IS a possibility of an annullment, and/or of the couple living together for a period of time, that it would be essential to explore these possibilities first. Because what happens if the MRT ask "Why didn't they try these options?"

I wouldn't write-off what you've suggested (and I had it in the back of my mind anyway), but I'd rather explore the easier options with the client first.

[Robert]

Jeff,

One can request for priority processing with the MRT. I have had a few grants to jump the queue for priority processing, and it is more likely to be granted if stressful separation of spouses are concerned.

Normally, I do not worry about the locally employed staff even though they are given enormous power to assess and make initial decisions. I usually say everything that has got to be said in the primary submission, so that the LES is compelled to discuss with the Australian staff and it gives the Agent a field day at the MRT to claim " a flawed primary decision" for "not asking relevant questions" or looking at "irrelevant issues" by the primary decision maker.

I usually make the clients aware that these are high risk strategies and that these strategies are used on a high gamble basis, when the road has come to a dead end. I get them to sign of the advance warning of refusal with high risk.


Robert Chelliah
www.austmigration.com.au

[downundervisa]

Again, suggestions noted and much appreciated. If the client contacts me, I'm happy to discuss all options with them then.