COMPELLING REASONS/FACTORS IN IMMIGRATION APPLICATIONS HOW THESE CAN HELP YOUR VISA APPLICATION.

LEGAL NOTES

by LINDA GERONIMO- SANTOS,
Solicitor NSW & WA Migration Agent
#9687414
Member WIRO

 

•APPLYING FOR A VISA
1.1 Meeting visa requirements
It is a general rule that a visa applicant applying for any types of visa should meet the requirements prescribed by the Migration Act and its regulations.
Where a visa applicant is applying for self, the applicant must be confident that he/she knows the requirements to be met. A small act of omission may mean the loss of a potentially successful application.


For example, an application for a 457 visa should meet skills assessment (unless the occupation is exempt), English proficiency requirement (unless the visa applicant can claim exemption), health and character requirements. Should the visa applicant miss any of the requirements, or answers incorrectly, the visa may be refused. While there are appeals for review (Migration Review Tribunal/Refugee Review Tribunal, courts), it becomes an uphill battle to reverse the decision of the Minister’s delegate. It is time consuming, it involves more costs, and the decision of the delegate, in the worst scenario, may be affirmed.


1.2 Dates are important in visa applications


If the Department has given the visa applicant a specific date for further submission and documentation, the v visa applicant must meet the deadline. If the visa applicant cannot meet the deadline, he/she should contact the case officer and request for extension. Usually the extension will be granted provided the request is made within the timeframe.


HOWEVER, in some cases there is no extension of time. Look at the following examples:


Graduate visa – a visa applicant applying for permanent residence or graduate visa MUST file an application for the corresponding visa within six (6) months from the date of notice of the university or educational institution that the course was completed, and the degree or certificate was granted. It is always prudent to avoid filing your application on the last few days from the deadline. Missing the six-month rule will lead to refusal of the visa application. One day late is ONE DAY TOO LATE.


•Appeals for review


When a visa application was rejected and the visa applicant wishes to lodge an appeal for review, the visa applicant MUST file the review application within 21 days from date of rejection if application is onshore, longer if the visa application is filed offshore. If the visa applicant files the review application beyond 21 days (for onshore applicants), the review application will be rendered an application that is not valid, and therefore will not merit a review.


•COMPELLING REASONS


Where a visa application may be rejected because it does not meet the visa requirements, compelling reasons may be invoked to turn around a potential refusal of the application. Some of these factors include (but the list is not exhaustive) the following factors:-


•Any adverse effect of the refusal on the Australian resident/citizen who is usually the sponsor. This may involve Australian children or Australian spouse who would suffer if the visa application is refused. For example, if the visa applicant is the father or stepfather of Australian children, and this visa applicant has taken on the role of the father and breadwinner of the family, refusal of the application will impact adversely on the entire family of Australian citizens.


•The visa applicant has contributed to the community at large. If the visa applicant takes an active role in contributing to community activities, the visa applicant can provide evidence from references of leading community leaders that he/she has been a part of the community and has contributed his/her time and efforts to promote community welfare via contributions to community activities.


•If the visa applicants are children, state the fact that these children have been absorbed into the Australian community, and that to remove them from their acknowledged home/country will impact adversely on them.


•Provide evidence of possible of further documentations (e.g. medical evidence where the issue is failing health requirement) , to show that the fear of massive costs to the community on account of one of a family of visa applicants failing the health requirement, may not be as bad as indicated by the MOC (Medical Officer of the Commonwealth).


•It is also useful to point out in the submission that the contribution of the visa applicant and visa sponsor, plus the potential contribution of the minor visa applicants in future may outweigh any financial disadvantage that may be incurred because of health issues.

 

•CONCLUSION


When making a visa application, it is important to be cognizant of the visa requirements, first and foremost. In addition to this, the visa applicant should do additional work, e.g. research that may help answer the potential issues, for example, if health is involved, it is useful to do research on the health issue of the child or of the visa applicant, and obtain the proper supporting medical and/or other reports to address favourably the health issue. If there is a Centrelink issue, research and obtain information from Centrelink. There are many ways of doing research; social worker’s reports, medical and paramedical reports, psychologist’s reports, etc, etc. These reports will cost money, but if the reports support your application it is money well spent.


Do not seek advice from a friend or a classmate. You should seek the help of a registered migration agent who will guide you towards a successful visa application, but with the caution that migration agents cannot and are not allowed to guarantee success of an application.

 

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