Partner Visa

[adam.smith]

Hi,
Could you please advise if the immigration uses discretion when determining if a person is able to sponsor their partner even though the waiting period for 5 years to sponsor again has not been met.

My story is:

1) In Jan 2007 i applied for a defacto visa for my ex wife and i was the sponsor.
2) In Nov 2008 she went back to her home country and filled for a divorce which was granted in March 2008. She never took up the Permanent residency.

Its been just over 3 years now and i have now met my partner who is am american. We are intending to marry in the next 3 months however i have been advised i wont able to sponsor her till Jan 2012 which is when my 5 years complete.

We were looking at having a child at the end of this year. Could you please advise if there is anything that i can do to be with her at the earliest. This distance is having a big strain on our relationship. Can she come here on a tourist visa for a year and i clearly state in my application that the reason for the year visa is because i cannot sponsor her for another year or so?

I would appreciate if anyone could help me with some advise.

thanks

Adam

[adam.smith]

Can someone please assist me wit this query?

[Robert]

Hi Adam

Even though the 5 year exclusion period is cast in concrete statutory language, there is waiver for this exclusion period if there are demonstrable compelling compassionate grounds.

The word "compelling" is not defined in law but carries administrative guideline.

The only quick reference I could locate for the word "Compelling" is based on another MRT case citing a Federal Court interpretation:

"The meaning of ‘compelling reasons for the absence’ in cl.155.212(3) was considered by the Federal Court in Lorenzo Paduano v MIMIA [2005] FCA 211.
In that case, the Court stated at [37]:

The ordinary meaning of the adjective 'compelling' is not confined to the meanings used by the Tribunal when it construed the legislative expression. The legislative expression is wide and unqualified. 'Compelling' in its wide, ordinary meaning means 'forceful'. Forceful reasons for an absence may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing. There is nothing in the express wording of the relevant subclause which indicates that 'compelling', where it occurs, should be read narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing. Equally, there is nothing in the express wording, or the context, which indicates that 'compelling reasons for the absence' must be confined to reasons incorporating an involuntary element, involving circumstances beyond a person's control, involving physical or legal necessity or cognate with the reasons given as examples in MSI 356.
59. In the context of this subclass, the Court in Paduano v MIMIA also concluded that the expression 'compelling reasons for the absence' refers to the applicant's absence and it is the applicant who must have been 'compelled' by the reasons for his absence. It is for the Tribunal, therefore, to make a judgment as to whether the reasons for the absence are forceful (as opposed to the Tribunal having to 'be compelled' by the compelling reasons). "

Based on this, if there are compelling reasons, usually happening beyond your control for the breakdown of the first union, you may be able to mount a case seeking waiver of the exclusion period.


If you wish to email your phone numbers or Skype ID, we can discuss this for a preliminary assessment.


Kind regards


Robert K Chelliah
MARN 9254011
www.austmigration.com.au
Email: rkc@austmigration.com.sg

[adam.smith]

Hi Robert,
Just sent you through an email. look forward to hearing from you.

thanks

[nix.mitch]

Im new here, i hope you can give some advice in my situation.

Im a permanent resident of aussie and i am 5 months pregnant to my 2 year boyfriend in the philippines. Now, i am planning to go back to philippines to get married to my boyfriend by june2010 and to sponsor him for spouse visa offshore asap, we already have all the documents that we might needed, i am planning to go back to aussie when the application is approved. But i am still worried, is there any chances that the application will not approved? how long does the application will take?

Please guys help me. it would be much appreciated for all responses.

[downundervisa]

I just replied to you under your other post. Cheers!

[nix.mitch]

thanks for the quick response. but one more thing, regarding to the witness statutory declaration form 888, i have a problem with that. what if i really don't have any witness who is pr or citizen to be my witness for my relationship to my boyfriend for 2 years?except for my mum holding a pr visa, and they said that it is required to submit atleast 2 witness statutory,is there any problem if i only have 1 witness which is my mum? i am so confused.

Thanks for the advice.

[downundervisa]

It's not written in Law that you "must have two x Form 888". It's their preferred method. But if you really don't, then you really don't. They can't deny an application due to that. This is only one form of evidence. Again, I suggest you use a good Migration Agent who is MARA-registered, and is experienced in this area.