Immigration Guides

Defacto Partner Visas For Australia

De facto partner visa tips from me

I’m an Australian immigration lawyer who advises daily on visa applications for de facto partners. In this post I’ll share with you key visa tips. Are you trying to learn more about visas for unmarried couples. Here you’ll see how immigration for partners work. I’ll also share the top reasons why your defacto visa application for Australia will get refused. Arghhhh!

What sort of defacto partner relationship are you in?

This de facto partner visa guide is particularly useful if your personal circumstances comes within one of these categories:

• you are an Australian citizen and your de facto partner is neither an Australian citizen nor an Australian permanent resident.
• you are an Australian permanent resident and your de facto partner is neither an Australian citizen nor an Australian permanent resident.
• you are are neither an Australian citizen nor an Australian permanent resident and your de facto partner is an Australian citizen.
• you are are neither an Australian citizen nor an Australian permanent resident and your de facto partner is an Australian permanent resident.

If neither you nor your partner are Australian citizens or Australian permanent residents, this guide might not the right one for you.

Instead you will need to understand how de facto partners are added to or combined with another Australian visa application. This is typically where an international student or overseas worker in Australia on a temporary visa, wishes to get a visa for their de facto partner, in circumstances where that de facto partner does not hold any Australian citizenship or Australian permanent residence visa.

Alternatively you may need to explore how the subclass 461 visa operates. The 461 New Zealand Citizen Family Relationship visa is a visa which assists couples where one partner is a citizen of New Zealand and the other de facto partner is neither an Australian citizen nor an Australian permanent resident, but wishes to have permission to be in Australia with their de facto New Zealand citizen partner.

Defacto Partner Visa Terms You Must Know

Partner visa

A “de facto visa” or “spouse visa” might also be called a “partner visa”.

Similarly, a “marriage visa” is a “spouse visa” and might also be called a “partner visa”.

Spouse visa

Australia offers spouses of Australians the opportunity to get a permanent partner visa. Spouses can be in a “married relationship” on the one hand or a “de facto relationship” on the other hand.

820 visa

A de facto visa lodged in Australia is a subclass 820.

309 visa

A partner visa lodged when the applicant is outside of Australia is a subclass 309.

Permanent de facto partner visa

Both 820 and 309 visas will lead to permanent residence in Australia. In the case of the 820, permanent residency is called the subclass 801 visa. In the case of the 309, permanent residency is called the subclass 100 visa.

What is a de facto partner visa Australia?

A permission given by Immigration to permit the defacto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen to be lawfully present in Australia either provisionally or permanently.

Requirements For Approval Of A Defacto Visa

Basic de facto visa eligibility

1. You and your partner must have been in a de facto relationship for at least 12 months immediately before making the application or have registered your de facto relationship before making the application or shortly thereafter.
   
2. If you are living apart, you must be living apart only temporarily.
   
3. One partner must be an Australian citizen or permanent resident, or an eligible New Zealand citizen. Usually this person will be over the age of 18.
   
4. Both must be able to demonstrate a commitment to a shared life as partners in a genuine relationship.
   

Defacto visa checklist

De facto Visa lawyers will each have their own checklists for what documents are necessary to support a de facto visa application.

You will need to provide documents about who you are, what the relationship is all about, previous relationships, immigration history, health and character. Check out this generic partner visa checklist published by the department.

Not enough documents

Most people think that not having enough of a pile of documents showing joint names and “couple” photos with friends and family for a 12 month period is why they’ll get refused, right?

Wrong! It’s not the quantity of material Dummy! Rather, it’s the compelling and corroborative value of all of the material you provide.

The de facto couples I’ve helped in the last 20 years have NOT rushed out on the very first day of their new relationship to set up a new bank account.

They have NOT rushed to execute a will (deed) naming each other as a beneficiary.

Realistically, you’d only rush to do these sort of things if your primary purpose was getting a visa. Chances are that in such a case, your de facto visa application isn’t built on solid foundations, hey?

Is your de facto visa application primarily facilitating an immigration outcome? If your documents suggest this, then you are on the wrong track!

Get on a different track fast!

De facto visa refusal

If your relationship is genuine, the good news is that you’ll likely succeed in obtaining a visa. The immigration gods are in your favour!

You’ll still need to be careful. A silly mistake may result is a visa refusal and an unnecessary appeal. More time, money and stress for you.

For example, an immigration law technicality rather …like not holding the right visa at the time of application or being in the wrong location when you apply could be a fact that ends up getting you refused. You see, most defacto partner visa applicants don’t get their de facto partner visa refused for not having enough supporting material.

It’s very possible to get a de facto partner visa granted without excessive material if your relationship is genuine and you explain why you are light-on with supporting material. Most of my clients have scant documentation, yet all of them are in genuine de facto relationships.

I’ve had de facto partner visa applications with only scant supporting material, approved, time and time again.

The real issue in de facto partner visa cases, is credibility.

Has your case officer been provided with credible information that your relationship did in fact exist, to the required level, at the time prescribed by the Regulations, and that your relationship continues to exist at the time of their decision?

These are the two most important questions.

I’ve found that immigration case officers want nothing more than to approve an application, whether de facto partner visa application or anything else for that matter. Why?

It’s easier to get an approval

Firstly, it’s a lot easier for a case officer to approve a de facto visa application, then to refuse one. Writing out “reasons for decision” in a decision record, if a de facto visa is refused can be very time consuming, especially when compared to how simple it is to grant a de facto visa. Department officers also recognise that an appeal to the AAT (Tribunal) might be lodged by any refused partner visa applicant and their sponsor.

Immigration officers will try to approve legitimate cases quickly.

If you provide plausible evidence supporting your legitimate case, this will save you (and your partner) the anguish of appealing against any adverse decision not to grant your visa.

I’ve also found that Immigration case officers are reasonable in their expectations of applicants when it comes to providing documentation. And if you make the right approach from the start, they will work with you to get your de facto partner visa application approved with the least amount of stress.

I can help you decide what is relevant and what is not relevant to provide with your partner visa application, and how to deal with obvious shortcomings in your support material.

Explain any lack of supporting material

Case officers expect you to furnish the details of the following four aspects of your relationship:

• Financial
• Nature of the household
• Social
• Mutual commitment

But it is ok if you don’t have everything. Who does! Ok. Some people do. But most don’t.

Solution: to address missing parts of the puzzle, the visa applicant and sponsor should each make clear, separate personal statements not only about their relationship but explain what’s missing and why. Give reasons.

Statutory declaration evidence

The right format for doing this is via a Commonwealth statutory declaration (there is a prescribed statutory declaration form 888 for this). The statutory declaration form rather than the form 888 is useful when you need to cover one specific issue and make things crystal clear for a decision maker about that specific issue.

If material is obviously missing, explain why and be truthful and frank with case officers. If you are nervous about this for any reason, make an appointment with me to help you draft the appropriate statement.

They are smarter than you 🙂

Immigration officers tend to be smart, experienced and methodical. They’ll smell a rat a mile away, and you can count on them checking things thoroughly if things don’t quite stack up for them.

Don’t try to fudge things or skim over gaps! You’ll waste a lot of time and money.

De facto visa application fees now cost around $8000 in filing fees alone.

Immigration lawyer fees are similar. You will suffer stress, delay and immigration consequences if your visa is refused. So address any gaps in your application head on.

Adverse information

There are legitimate reasons why certain material could be scant or missing altogether. My advice is to explain carefully why stuff is missing. Even the stuff that may be adverse should be considered for careful upfront frank and candid explanation.

If there’s any adverse information, be the first to raise it.

The credibility you will have as a result of bringing something to an Immigration case officer’s attention (rather than the other way around) may well be the credibility that ultimately saves your bacon, if you have a border-line application.

Common Questions People Ask Me

Is the visa guaranteed?

Is visa grant a sure thing? Absolutely not! But your chances of approval are greatly improved by following the approach above.

The credibility theme is one aspect of a partner visa preparation and submission system that I’ve successfully used for over 20 years.

I’ve lodged well over a thousand successful de facto partner visa applications with the Australian Department of Immigration. Do you need help lodging yours?

What does a defacto visa cost?

Fee payable to the Department when filing a defacto visa application are approximately $7715. Fees payable to your immigration lawyer are additional.

What are my chances?

If the visa forms, personal documents and supporting explanation you and your immigration lawyer provide is credible, your application for a de facto partner visa will most likely be granted, even though there might be relatively little by way of evidence, compared to what might be provided by others.

Processing Times

There is a waiting period of approximately 2 years from the date of application of this visa before a decision is made to grant the provisional visa.

The permanent partner visa (subclass 801) application is made at the same time as the subclass 820 visa application but the subclass 801 is only assessed 2 years after the date of application lodgment.

You’ll need to show a case officer that since the time of lodgment up to the time of decision you were in a genuine and continuing relationship with your partner.

Work rights while waiting

The bridging visa granted in association with an on-shore partner visa lodgment, typically includes unlimited work rights and the ability to study in Australia.

You might not get work rights attached to your bridging visa in the first instance. If this happens, then there may be a opportunity to get work rights if you can demonstrate a compelling need to work.

The 12 month rule?

De facto – period of the relationship must be at least 12 months prior to the date of visa application…

But..

Reg 2.03A(5) have these exceptions:

1) compelling and compassionate circumstances

2) humanitarian visa holder

3) relationship is registered.

Unlike regulation 2.03((A)(3) which explicitly requires the 12 month relationship to be met at the time of visa application, regulation 2.03A(5) is silent on when the relationship must be registered.

As such, an applicant who registers their de facto relationship after the application is made but before it is decided, is taken to have met reg 2.03A(5). Woohoo! ♥️

Is Divorce Necessary?

No.

You can most certainly be in a de facto relationship but still be married to somebody. In order to get married again, you must first get divorced.

If you are married and separated, you could be in a defacto relationship with a new partner and this could mean you may qualify for lodging a partner visa, without your divorce being finalised.

One issue is that you aren’t able to get a defacto relationship certificate until you are married. But see my comments above.

How Many Times Can I Do It?

As a general rule you can only sponsor a partner for a permanent partner visa on two occasions in your lifetime and these must be five years apart.

If you have been sponsored on a partner visa, you can’t usually sponsor and get a visa grant for a new partner within 5 years.

There are however limited opportunities to sponsor more than two partners and to do so within a five (5) year period.

Health waiver for defacto partner visas

Great news. If the applicant has a medical condition, there may be an opportunity of seeking a health waiver for your defacto partner visa. Not all visas allow for the waiver.

Appeals if defacto visa is refused

An application for a review of a negative decision by a case officer is usually available to be made at the AAT (was called MRT). Strict time period apply for making any appeal application.

Costs payable to the AAT when filing a defacto visa refusal appeal are around $1800. Professional fees payable to your immigration lawyer are additional. They are in the range of $3500-$9500 depending on the complexity of the appeal and the skills and experience level of your immigration lawyer.

Bridging Visa Held Or No Visa Held At All

Bridging Visa Holders

The provisional partner visa (subclass 820) provides for a bridging visa which allows the visa holder to stay in Australia until a decision is made on their application.

The bridging visa granted in association with an onshore partner visa lodgment, typically includes unlimited work rights and the ability to study in Australia.

If the applicant holds a bridging visa for more that 28 days and wishes to apply for the de facto partner visa, then there is additional criteria that needs to be addressed. Check out my guide to schedule 3 to understand how schedule 3 affects bridging visa holders in Australia seeking to lodge de facto partner visas in Australia.

Applicants in Australia with no visa

If there is no visa held, then this is problematic but not necessarily fatal to a de facto application.

Applicants in Australia with prior visa refusal

Defacto partner visa applicants can often lodge onshore even if they are onshore and have been refused a visa of another type and are awaiting the outcome of an appeal.

Past Police Problems

Applicants with a criminal record

If you have a criminal record, this may exclude you from a de facto visa grant. Your character is an important criteria for the grant of any visa.

Past police problems will always be problematic to some extent. However, in most cases it is not necessarily fatal to the outcome, unless very serious crimes have been committed.

Talk to me about the particular circumstances in your case.

Sponsors with a criminal record

Watch this space. This process is changing soon. Sponsorship applications are likely to get much more difficult (and delayed) where the sponsor is of poor character, previously involved in family violence or both.

Registering Your Relationship

If you can do this in your state or territory, do it now! Not all states and territories allow registration.

A de facto visa application can be made on the basis of a registered relationship.
In most states and territories, you’ll get certificate issued to you in about a month.

You could also get a de facto visa on the basis of having been a 12 month de facto relationship (without a certificate). However, if you are applying on the basis of the relationship certificate, you won’t need to meet the 12 month rule. Really useful!!

The Good States

If you are in a de facto relationship and wish to avoid the 12-month requirement, a relationship certificate is usually a great solution.

Unfortunately for migration purposes, not every state and territory has a relationships register which is recognised.

Here is a list of the states and territories which are what I call the “good” states.

The best places for de facto couples to live are Victoria, Tasmania, New South Wales, Queensland and the Australian Capital Territory. It will be frustrating if you are resident in Western Australia, South Australia or the Northern Territory. Damn!

Addresses For De Facto Partnership Registration

Ask Me Questions Defacto Visa Questions!

Please share your questions and comments with me below. This forum helps others access more answers to more real life visa questions.

I’d love to know more about your de facto partner visa experiences. What would you like to share with me?

Travel Restrictions And Exemptions

With the advent of the Covid-19 global pandemic, the Australian Border Force has been empowered with restricting travel in and out of Australia.

Australian citizens and Australian permanent residents are usually able to enter Australia, however, temporary visa holders can face severe imparities when entering Australia during a global pandemic such as Covid-19. 

Travel restrictions are subject to change in response to the circumstances surrounding COVID-19. 

What is important to note is that the Department of Home Affairs controls the granting of visas for non citizens. The Australian Border Force which is part of the Department of Home Affairs at the present time regulates the entry and exit of individuals.

Inwards Exemption Categories

• Australian citizen
• Australia Permanent Resident
• An immediate family member of Australian citizen or permanent resident
• A New Zealand citizen usually resident in Australia
• A person who has been in New Zealand or Australia for 14 days or more immediately prior to arrival by air in Australia
• A diplomate accredit to Australia, including their immediate family members
• A person transiting Australia for 72 hours or less
• Airline crew or maritime crew
• A person recruited under the Government approved Seasonal Worker Program or Pacific Labour Scheme
• A person who holds a Business Innovation and Investment (subclass 188) visa

You will need to carry evidence that you meet one of the above categories when travelling. Additional evidence may be required.

Outwards Exemption Categories

• Temporary visa holders who have arranged a flight to return their home country
• Australian Citizen or PR who has compassionate and compelling reasons to travel

Individual Exemption Requests

If you are not in any one of the exemption categories, you can apply for individual travel exemption online through the Government website or contact us for professional assistance.

You will need to apply for an exemption at least 2 weeks prior to your planned travel date but no more than 2 months before.

Please note, you should not continue with your travel plans if your travel exemption was not granted as you will not be permitted to board a flight.

Compassionate And Compelling Reasons To Travel

I have been asked by many of my clients whether their reason to travel can be granted the exemption. The truth is, everyone thinks their reason to travel is compassionate and compelling.

The Department has listed the ‘exceptional circumstances’ exemption criteria outlined in the “Inwards Travel Restrictions” and “Outward Travel Restrictions” documents.

[Updated 15 June 2021] Travel To India

The Department of Home Affairs has recently announced that Australian citizens and permanent residents have more reasons to travel to India than before. We have summarised the changes in the table below:

[Updated 15 June 2021] Travel To New Zealand

The Australian and New Zealand government has announced the Quarantine-free travel  also known as “travel bubble” at 21:59 AEST on 18 April 2021. 

In order to travel to New Zealand on a quarantine-free flight, you must have spent at least 14 days immediately prior to your departure either in Australia or New Zealand and meet relevant health criteria for either country.

To be able to travel to New Zealand without travel exemption, you must be an Australian citizen or permanent resident. If you are a temporary visa holder, please make sure your visa condition does not restrict you from travelling and you have travel exemption approved.

[Updated 15 June 2021] Travel to Papua New Guinea (PNG)

Due to the recent outbreak of COVID19 in PNG, travel exemption will only be approved in extremely limited circumstances if you:

• work for critical sectors providing assistance to PNG’s COVID-19 response;
• are undertaking critical safety roles.

The ‘exceptional circumstances’ exemption criteria outlined in “Outward Travel Restrictions” documents does not apply.

This restriction may be eased when the circumstances have improved in PNG. You can check the Department of Home Affairs website for updates.

How Long Will It Take?

The majority of travel exemption requests to depart Australia are finalised within 48 hours, and the travel exemption application to come to Australia are normally finalised within a week (7 days) time. Duplicate applications or complex circumstances may delay the assessment.

Travel Exemption Q&A

How I can help you?

To discuss how I can help you with an exemption application please book in a chat with me. 

The travel exemption application process is designed to be user friendly for individuals, without the need for migration lawyers. However, sometimes circumstances are such where you may prefer to outsource the process to a migration lawyer. If this is the case then you might consider contacting me today.

Get Bridging Visa Help Here.

How to apply for a bridging visa?

Most of the time you don’t need to make the formal application for a bridging visa. This is because it is granted to you by operation of law. 

Is the application necessary?

A formal bridging visa application is usually not needed if you apply for a further visa while you are in Australia and you already hold a substantive visa at the time of making your further visa application.

Automatic Grant

The reason why a formal visa application for a bridging visa might not be required is that by operation of law, the valid application for a further visa in Australia is typically (but not always) deemed to be an application for a bridging visa as well. That application is usually always granted, either manually or automatically.

Purpose

The purpose of a bridging visa is to bridge the gap, if any, between the time at which your current substantive visa expires and the point in time when your new substantive visa is granted.

The bridging visa is a mechanism for keeping you lawfully present in Australia.

Otherwise…

If a bridging visa was not to be granted, then it would mean that you would be an unlawful non-citizen, present in Australia for that period between when your substantive visa expires and your further visa is decided.

Types of bridging visas

The three most common types of bridging visas are a, b, and e.

Which do you have?

The most important thing to check is that you always have a visa whilst you are in Australia (if you’re not the holder of an Australian passport).

You can check the visa that you hold at any time by completing a VEVO check. It’s online and free.

Know this…

BVB limitation

Be careful with a bridging visa b (BVB). Its purpose is to allow you to leave and return to Australia whilst you are waiting on a further substantive visa to be granted to you; you may exit Australia for a very finite travel period and must re-enter Australia by a specified date.

BVB disaster

The biggest risk with a BVB is that you forget the period for which your BVB is granted, and you then fail to re-enter Australia before the date specified. Take very careful note to start returning to Australia several days before your BVB expires, so that you have ample time to re-enter Australia if you leave.

Bridging visa after re-entry

When you re-enter Australia your bridging visa b does not change back to a BVA but will show as a BVB allowing you to continue to stay in Australia but importantly does not then have any exit and return facility.

Second BVB

You will need to take care to lodge a further BVB if you wish to again exit Australia in the period in which you are waiting for the grant of your further substantive visa.

If you hold a BVA or a BVB you can apply for a BVB.

Only one chance!

Unfortunately, if you hold a BVC or a BVD or a BVE then you can’t apply for a BVB. It’s like losing your virginity.

Think of it this way – if you hold a BVC OR BVD OR BVE, you can never go back to get a BVB, at least until after your further substantive visa application has been granted.

As explained above, bridging visas “bridge” you from when an existing visa ceases to be “in effect” till the time decision is made on any new visa you may have applied for.

Bridging visa lifespan after a decision on substantive application

Usually, the bridging visa will run for a period of up to 28 days (and possibly 35 days depending on when you lodge your application and when your bridging visa was granted) after the decision of the Department to refused your visa application, allowing you or your migration agent or immigration lawyer enough time to file an appeal.

Bridging visa to travel overseas

The Department of Home Affairs can issue You with a bridging visa. If you intend to exit Australia. This is known as bridging visa on departure grounds. These visas are for a fixed period.

Extension of BVE

There may be some scope to have these extended if, for some reason, you can’t depart. This is subject to negotiation between you and the compliance officer at the Department of Home Affairs.

For example, you might be without a visa and need a week or so to get things in order before you can exit Australia.

Immigration will often grant you this type of visa for a fixed term which will allow you time to exit the country or lodge another application.

Depart on BVE – consequences

There are serious consequences that follow after you exit Australia on a BVE. This is known as “special return criteria” where you may suffer a period of exclusion from Australia or ban from having a further visa granted for Australia.

BVE ban duration

The duration of this ban will depend on the sort of visa you are applying for and your circumstances for something that I advise on regularly and you should get independent immigration legal advice if you wish to make an application for Australia after exiting on a BVE.

Bridging Visa “In Effect”

Although your bridging visa may be granted (and you may have received a letter from Immigration saying that you have been granted this visa) take care to note that this visa will usually only come “into effect” when your existing visa expires and will remain in place while your new visa application is being considered. For example, suppose you are a holder of a Subclass 600 Visitor Visa. And you apply for a Subclass 482 Temporary Skills Shortage Visa while onshore.

Check your precise visa status regularly on the Department’s site.

When your bridging visa kicks in

You will not automatically become the holder of a bridging visa as soon as you make that 482 visa application. You will still be on your Subclass 600 until it expires. Your bridging visa will usually kick in, if at all, immediately upon the expiry of your Subclass 600 Visitor Visa.

Bridging visa might never activate

The Department may grant your 482 Visa Application while your Subclass 600 Visa is still in effect. This means the bridging visa granted to you in association with your Subclass 482 visa application will be extinguished and never come into effect.

Bridging visa not automatically granted

Don’t stress . Be vigilant in follow-up as to why is it could be that your application might not have been a valid one.

Consider making a seperate application for a bridging visa if your recent assistance visa application was valid but has not yet yielded a bridging visa grant – this usually wakes up case officers!

Practice Tip!

Stay onshore (inside Australia) if your bridging visa is not yet in effect.

Exiting Australia will usually extinguish this visa and you may well find yourself stuck offshore. This can be tricky and I would recommend you get some advice about any planned exit from Australia.

Your Experience?

Please share your comments with me.

I’d love to know more about your experience with applying for this visa subclass!

Learn About Australian Immigration Lawyers Here.

All immigration lawyers are hardly the same.

Immigration lawyers v migration agents

Let’s start with what’s common between the two:
An immigration lawyer and a migration agent both deal with immigration matters. Not sure what the big deal is … Between an immigration lawyer and a migration agent?

There isn’t much a difference at all between the two for straight-forward applications.

An immigration lawyer will have completed a law degree and been admitted as a lawyer in Australia. Under current laws, both immigration lawyers and migration agents are required to be registered.

Registration

Agents are licenced by the Office of the Migration Agents Registration Authority(OMARA).

An immigration lawyer is registered with MARA but also can represent their clients in the Courts because they hold “law” practising certificates.

All migration agents are not legal practitioners but all migration agents are regulated by the Migration Agents Registration Authority.

Migration agents skills and qualifications

A migration agent currently needs to complete a post-graduate diploma in immigration law together with some practical and oral assessments to obtain a licence to provide immigration advice and assistance.

Advice is provided under section 276 of the Migration Act 1958.

Immigration lawyer skills and qualifications

A lawyer is also known as an Australian legal practitioner and would have completed either the equivalent of an Australia law degree or completed a program offered by the Legal Practitioners Admission Board in their state or territory and then been admitted as a solicitor or legal practitioner in their state or territory.

An immigration lawyer (or immigration attorney or migration lawyer) will also hold a practising certificate which is issued by their local law society.

They are regulated by relevant Law Societies and the Legal Services Commissioner or similar.

If the lawyer is also a registered Australian migration agent, then that lawyer is also regulated by the Migration Agents Registration Authority.

When the going gets tough, the tough get going

Immigration lawyers advise on both judicial review and merits review of applications.

Migration agents who are not lawyers can not advise in respect of Judicial Review of applications.

Review

A judicial review involves finding error in the decision-making process whereas Merits Review involves an assessment of whether particular facts meet the criteria for the grant of an application.

If you are applying for a visa for Australia you usually have one opportunity to apply for a visa at the Department of Home Affairs.

If you are not successful, you may (not always!) have an opportunity to seek review (Merits Review) of the decision by the Administrative Appeals Tribunal (or in limited cases the Immigration Assessing Authority (IAA).

Representation

Migration agents can represent clients in dealings with the Department of Home Affairs and also in dealings with the AAT and IAA.

Migration agents are not able to represent clients in respect of legal advice including judicial review applications, for which you need to go and see a lawyer in your state or territory. Migration agents’ services are limited to providing advice which is immigration advice or assistance and no other advice of a legal nature.

“Immigration lawyer” definition

Lawyers dabble in different areas of legal advice (not just immigration). An “immigration lawyer” is most sensibly defined as a lawyer who specialises in or only practices in immigration law work.

So a lawyer who practices in other areas of law and whose practice is not predominantly related to immigration legal advice is more likely to be a general practitioner or legal practitioner of another speciality and not really an “immigration lawyer”.

How many immigration lawyers are there in Australia?

There are 7402 immigration practitioners in Australia. These individuals have been given a license by the Office of the Migration Agents Registration Authority to give immigration advice and assistance.

Of this number, 2200 (or roughly one in three) also hold legal practising certificates and are “lawyers”. However of these 2200, whether all are in fact “immigration lawyers” is an interesting question.

In my estimation, only 10% to 20% of the 2200 lawyers who are also licensed migration agents are “immigration lawyers” with 80% of this 2200 cohort being lawyers who entertain other legal matters in their workload, beyond immigration work.

Immigration lawyers who aren’t quite immigration lawyers

One problem area for migrants who don’t understand the Australian legal system is that they believe that their “migration agent” is a lawyer and some of the less unethical migration agents will allow innocent clients to maintain this incorrect belief.

Some of the more brazen migration agents even refer to themselves as “lawyers” in their communities.

Some languages don’t actually have a term in their vocabulary for migration agents so often the word lawyer can be conveniently (if not deliberately) substituted.

Convenient labels

Whether a person’s title is conveniently transcribed from migration agent into “lawyer” and because of the influence a person may have in their particular community, often no-one calls this person out as being a fake immigration lawyer. Of course, it is a criminal offence to hold yourself out as a lawyer if you are not.

How much do immigration lawyers charge?

I have been an Australian legal practitioner now for a quarter of a century and in that time it’s been very rare for clients to have matters open up on their behalf as files in legal practice for any amount less than $1,500.

If you are seeking advice from an immigration lawyer, I would expect that you would not get a lot of change out of $2,000 for something more than just form-filling.

Easier applications

I would also expect temporary visa applications that are not complex would be in the vicinity of $1,500 to $3,500 with permanent visas in the range of $3,500 to $7,500.

Of course, you can expect to pay a premium if there is complexity associated with your matters on the one hand and if the particular immigration lawyer you are using has particular expertise and reputation, on the other hand.

What is quite astonishing is that Migration Agents seem to price their services at similar levels to immigration lawyers although they do not hold legal qualifications themselves.

How much do immigration lawyers charge for appeals?

In respect of appeals to the Administrative Appeals Tribunal for standard merits review, fees lawyers charge range from $5000 to $10000.

In the case of judicial review of decisions of the AAT, which typically requires litigation in the Federal Circuit Court of Australia, you can expect that legal fees paid to solicitors range between $7000 and $14,000.

Additionally, barristers fees of between $5000 $10,000 are not uncommon.

What’s the point of having a lawyer involved in a simple visa application?

The short answer is you don’t need a lawyer or a migration agent for many immigration applications.

Thousands of immigration applications are made each day electronically by operation of law or both, without any involvement of migration agents or immigration lawyers.

Online applications

The Department of Home Affairs has acted progressively to make the majority of the Australian immigration visa types able to be applied online and without the assistance of a migration agent or any authorised representative.

The problem is that immigration outcomes are extremely important.

Your visa outcome will affect where you live and how you live the rest of your life and importantly whether that will be permitted in Australia.

Correct answers

Once an application is made, then your answers to questions throughout the application process will be forever recorded as having been given by you and sworn (declared) to be true and correct.

The answers that you provide and the documents that you upload into immigration systems directly affect whether or not you meet the criteria for the visa applied for and whether or not you’ll be able to apply for and be granted future visas.

Unfortunately, the Department of Home Affairs is not very forgiving when it comes to incorrect answers and documents with irregularities, not to mention documents which are found to be bogus.

What can I expect from my Australian immigration lawyer?

After booking in a consultation with an Australian immigration lawyer you can expect to get initial oral advice in terms of what to do next.

If your matter is complex, then your immigration lawyer will need to take your question on notice and provide you with some further detailed advice at a later time.

Additional costs

Some immigration lawyers will charge for this additional advice and others will charge an amount up to $700AUD for the initial discussion depending on its urgency and complexity.

The most important thing from your first interaction with your immigration lawyer is to understand whether or not there is any point in engaging them. This is as much about your particular immigration lawyer as it is about your immigration problem.

Receptionist advice isn’t advice

At our immigration law firm, people will often call up and unload the details of their problem with our receptionist, and expect a solution after sharing details of their circumstances.

Giving complete and proper advice is impossible to do without knowledge, time together and proven system for flushing our all issues that may be relevant to the advice given.

The initial discussion with your lawyer is an opportunity for you to ascertain whether or not this person for you.

A good fit?

Is your lawyer competent to advise you and is interested, enthusiastic and sufficiently knowledgeable?

Will the advice they provide you, be something which sets up your case with the best possible foundation so that it would be ultimately successful in achieving your goals?

The question is not just about your circumstances but whether or not your immigration lawyer has the knowledge and experience to deal with your circumstances.

To that end, you will need to share your circumstances with your immigration lawyer. It’s a good idea to ask your immigration lawyer for a written summary of what they understand your circumstances to be.

What you would expect when you meet with me is that I would give you a summary document which explains my understanding of your situation.

Your options

A good immigration lawyer will give you your options and what your best choice amongst all the options you may have.

The Top immigration lawyers will also give you an indication of prospects for success as well as a fixed price to assist you with certain carefully defined items of work.

Fixed fees

Negotiate a fixed price if you can with your immigration lawyer – as I believe that this is a fair way to proceed for both parties.

Of course, if something changes and something out of left field conspires to dramatically increase the work that is required, then this is something which is covered by the fair agreement that you have with your immigration lawyer.

Your immigration lawyer will give you a cost disclosure and cost agreement. This is slightly different from what you would get from a migration agent which is a fee agreement or cost agreement.

In short, you can expect a fixed fee agreement from your immigration lawyer about everything to do with your proposed application including a recommended course of action, costs, timing, prospects of success, and issues that are of concern are all peppered with relevant migration law principles and immigration Department policies and procedures.

An agreement to do work

Whatever agreement you have with your migration agent or immigration lawyer, it is essentially a contract between two parties for the provision of professional services.

For most immigration matters the agreement is assistance with preparing and lodging a visa application and dealing with ancillary matters. These might include appeals against any decisions that are adverse or responding to requests for further information or notices or other requisitions that may arise through the course of processing of a visa application.

What to do IF you are unhappy with your immigration lawyer?

If you are concerned that your initial choice of immigration lawyer was not the right one then I would strongly recommend that you contact your immigration lawyer IMMEDIATELY and seek to have a meeting with that person to explain why it is you feel that you are being let down.

Your relationship with an immigration lawyer is a two-way street and works best when both parties work together to try and achieve the desired outcome as a team.

Write to the head advisor

If you are unable to resolve your grievances with your immigration lawyer in a meeting and move on towards getting the immigration outcome you need, then a sensible next step would be to write to the Principal.

You should promptly explain to the Principal of the practice what your concern is.

I have not yet found a legal practitioner in Australia who will not respond immediately to anything that is sent to them raising concerns about how their matter has been handled.
One thing to note is that immigration lawyers are not telepathic and might be completely unaware of your dissatisfaction in most instances.

Take care to communicate with your immigration lawyer promptly if you have any level of dissatisfaction.

Eyeball your advisor

I believe it’s important to meet with your immigration lawyer face to face before engaging them for any work which is likely to take a considerable time.

This is not to say that you need to have your first appointment with an immigration lawyer face to face, but I find that in all my years in providing immigration law advice to clients, the incidence of dissatisfaction is much higher when it comes to clients that you never had a face to face chat with.

It is not always possible to meet face to face with an immigration lawyer but with modern technology you should be able to communicate effectively with that person.

Test communication skills

Use your initial consultation as a test of your ability to communicate with them. Get a sense of how well your immigration lawyer understands you. Experience first hand the practicality of phoning and getting through to your advisor. Will your advisor responding to your email or your phone call or your text messages promptly?

Take care not to proceed to retain an immigration lawyer simply because there is no one better at the time or that it’s quite convenient for you at the time.

The Sting

This may well come back to bite you in the backside if you have paid a deposit or gone a fair way down the track in the processing of an immigration application with somebody who you don’t like or you don’t trust or you don’t respect or you don’t have confidence in.

It’s probably a bit late at this stage to change lawyers although it is something that you should consider if the relationship is one which has turned sour and certainly if it has become toxic.

If the practice you have engaged doesn’t resolve your problems, what can you do?

If you have tried to speak to your immigration lawyer and you have tried to speak to the firm and you have done that in writing in addition to having a sit down meeting with them, then it’s probably time to speak to another practitioner in the same space.

I would immediately contact another immigration lawyer and get a second opinion about what you should be doing, that other practitioner will also guide you and alert you to other avenues to have your grievance with your initial immigration lawyer resolved.

How do I pay my immigration lawyer?

You can pay your immigration lawyer in the same way as you pay any other advisor.

You can make payments to them by electronic funds transfer or you can pay them by depositing money into their bank account after going to a bank and usually most immigration lawyers will accept credit card payments as well.

Some of the bigger immigration firms will accept BPay. Note that whilst Bpay usually does not incur a charge, a credit card surcharge will often be levied about payments made by credit card for your immigration lawyer’s invoices.

Electronic payments

Concerning payments made electronically to facilitate the lodgment of applications at the Department of Home Affairs, you should note that credit card surcharges are also applied by the Department of Home Affairs when making applications online.

Immigration lawyers can also accept cash payments however you should take care to obtain a receipt and obtain proof of payment at the time of making any cash payment to anyone not just your immigration lawyer but anyone who provides services to you.

Do I have to pay my immigration lawyer in one lump sum or can I pay in instalments?

This depends on your arrangement with your immigration lawyer. Usually, immigration lodgments tend to require quite a bit of work upfront if there is a lodgment required for a deadline expires.

This will usually mean that you will be required to fund the majority of your invoice if not all of your invoice in a relatively short period.

In this sense, it makes sense to start early with this application so that you can be in a position where you are not rushed and not required to pay the fees to your advisor over a short period rather than over an extended period.

Most immigration practitioners will have an account which is reserved for client monies and will usually complete work and be confident that clients have made payments of fees into the client’s account, meaning that they are not worried that you will skip the country without paying your immigration lawyer his dues if your application is not successful.

Instalment payments

Whilst you can expect payment in instalments in the case of professional fees, take care to note that the Immigration Department does not allow you to make payments in instalments except in limited cases for very large visa application charges which they levy, for example, the contributory parent visa classes.

How do I know my advisor is a lawyer or a migration agent?

The smartest way is to simply look up your advisor on the regulator’s website. The regulator that offers licences to practitioners who which to give immigration advice and assistance is the Migration Agents Registration Authority.

You can contact the MARA or visit them online at mara.gov.au and search for your practitioner’s name. When their record is viewed, it will identify whether your advisor is a migration agent or both a migration agent and an Australian legal practitioner which includes either being a solicitor or barrister.

Can a barrister provide help with an immigration application lodged with the Department of Home Affairs or an appeal to the Administrative Appeals Tribunal?

Usually, a barrister will refrain from direct contact with a visa applicant. A barrister will usually buffer themselves by having a solicitor interpose between themselves and the visa applicant.

Barristers don’t lodge applicant at the Department of Home Affairs and barristers don’t usually appear at the Refugee and Migration Division of the AAT although barristers do appear in the general division of the AAT.

One practical reason is that barristers at the time of writing this post, are also required to have a migration agents licence issued by the office of migration agent registration authority in the event In which they wish to provide immigration advice or assistance.

Some barristers simply will not wish to have this extra layer of licensing and will only act through a solicitor however there is a very small number of barristers whom I’m aware of that have taken that extra step and hold a migration agents licence in addition to being admitted to the Bar in their local state or territory.

Is my case officer an immigration lawyer?

It is highly unlikely that the person looking at your application for a visa in Australia is an immigration lawyer in the sense that they have a current practising certificate. This is because the tasks of decision making are usually done in an administrative capacity and I’m not sure many immigration lawyers would accept positions as being decision-makers about visa applications because their immigration law qualification simply allows them to do so much more.

However there are no doubt many case officers at the Department of Home Affairs who have law degrees and I wouldn’t be surprised, although to be honest, I don’t know if there were Australian legal practitioners who were looking at cases at first instance within the Department of Immigration.

Are members of the Tribunal (AAT) Lawyers?

No. And this has been the source of some considerable debate. A recent enquiry by former High Court judge his honour, Justice Callinan has ventilated ideas for restricting the future appointments of members to persons who hold practising certificates and who are legally trained or have recently been practising Australian legal practitioners.

Criticism of the AAT

There has been considerable criticism that the Administrative Appeals Tribunal has been stacked with members who might not be adequately trained to deal with the legal complexities of deciding immigration cases, being former staffers of politicians who lobby for their appointment into what was seen to be these rather cushy jobs as a member of the tribunal.

I think it is quite clear that in the future all members of the tribunal will be lawyers.

AAT reforms

What is not clear however is whether or not there would be any change to whether migration agents will be able to continue to appear at tribunal hearings, not being lawyers themselves. Certainly one of the frustrating things for many of my clients has been the fact that costs are not recoverable at the AAT when the Tribunal overturns a decision that is made by the Department of Home Affairs.

What ends up happening is that the visa applicant sits in limbo for 15 months give or take a few months.

Tribunal fees

Most visa applicants are usually considerably out of pocket when going to the Administrative Appeals Tribunal.

The nature of the Tribunal is that no-cost is awarded in favour of the visa applicant.

This is despite receiving a positive decision after having been refused by the Department and having incurred considerable costs in having an immigration lawyer support their application for appeal to the Tribunal. Not great!

The refund of half of the filing fee which is about $800, is little consolation for a visa applicant who has had their life placed in a holding pattern for years.

The waiting applicant may or may not have work rights in Australia and certainly is unable to secure true permanent employment whilst they are the holder of a bridging visa and waiting for a further determination of their application.

Do immigration lawyers have any special advantage in the Tribunal hearing over migration agents?

The answer is No.

An applicant is entitled to have representation at a hearing of the Administrative Appeals Tribunal in the Migration Refugee Division at least (things are a little bit more formal in the General Division).

Whether you have a migration agent with you or a lawyer with you at the AAT hearing, either party can make oral submissions at the hearing.

The point is the Tribunal will clarify that there are no rights to the audience for either migration agent or immigration lawyer at the Tribunal however in every instance the Tribunal acting reasonably will allow a representative to bring a submission whether orally at the hearing or in writing before a decision is made.

Jurisprudence

What is notable however is that an immigration lawyer who is more conversant with the legislation and the jurisprudence which is the legal thinking around issues relevant to whether the visa ought to be granted may well make different and more valuable or more relevant submissions than a migration agent.

It is also useful I think to have an immigration lawyer at the tribunal if you are considering an appeal to the Federal Circuit Court in those circumstances where the decision of the Tribunal is infected with some legal jurisdictional error.

A migration agent might not be able to discern the legal error in the same way an immigration lawyer might.

Your advisor is more likely to be more legally savvy if that person is trained at a legal practitioner.

This is not to say that immigration lawyers will always outgun migration agents at the Bar table before a member of the Tribunal but in my experience, it will boil down simply to how hungry your advisor is and how legally savvy he or she is.

Do immigration lawyers appear in the Federal Circuit Court without barristers?

Several seasoned immigration lawyers appear without the assistance of barristers in the Federal Circuit Court.

Typically this is in circumstances where a Tribunal member has fallen into error when making a decision which is outside of their power and the decision is sought to be quashed by a Federal Circuit Court judge or by a Federal Court judge in some cases.

Whilst barristers are often briefed to appear in the Federal Circuit Court and the Federal Courts about an immigration matter, there are a small number of solicitors who will appear without barristers.

‘Solicitor Advocates’ is perhaps a good term for this very small cohort of Australian legal practitioners.

Recovery of your legal fees after Federal Circuit win?

Unfortunately, while there are no costs that will be awarded in your favour if you are successful at the Administrative Appeals Tribunal it is a little better in the Federal Court.

This is a little different when an application is made for a review of the Tribunal’s decision at the Federal Circuit Court. If you win at the Federal Circuit Court then you are likely to also be given a favourable costs order which means the Minister is ordered to pay certain costs.

These costs in the Federal Circuit Court are usually in a fixed lump sum and currently are something in the vicinity of AUD 7,000.

Unfortunately, costs and disbursements in taking your matter to the Federal Circuit Court are likely to be considerably more than this amount that is typically ordered in your favour if you are successful in the Federal Circuit Court.

How do I work out who the best immigration lawyer is?

The best immigration for you is the one you can best communicate with and who takes your calls and who is courteous and in whom you have trust and respect and confidence.

I strongly recommend that you meet with not just one immigration lawyer before deciding on who to retain to assist you but that you speak to at least two or three immigration law practitioners.

There is no point in having somebody who is particularly expensive and who has a particularly great reputation but who has no time to understand the issues of your case and has no empathy about your circumstances.

He or she might be a very professional person but if they don’t get you then I would start Running!…. running to find somebody who does get you.

Isn’t that what we all want?

Key People of Influence

“At the centre of every industry you will find an inner circle of people who are the most well-known and highly valued people. They are the Key People of Influence.”

(Daniel Priestley)

You may already know who these people are in the migration advice industry. They are the best immigration lawyers. Their names come up regularly in search results and in articles and in advertisements and in suggested videos and in the cases and forums you may research.

The best immigration lawyers are the ones that everyone talks about. They are the go-to people when things get hot in the immigration kitchen. 

The best migration lawyers are also the advisors who are trusted to get things right after things have gone horribly wrong. This is when it gets very very hot in the visa kitchen. Much too hot for your average migration agent!

The best practitioners maximise your chances of getting a positive immigration outcome. Not guarantee. Maximise. 

The funny thing about the best immigration lawyers is that over time, they become better and better. 

Time is the key. As key persons of influence in immigration, the best lawyers get to see more cases than their competitors. You see, the better you are, the more you attract more immigration challenges. 

It is through more and more immigration challenges the better immigration lawyers get to even further refine their skills. This is not peculiar to the migration advice industry. It happens in every professional services firm.

Unfortunately, the advice industry is plagued with pretenders – the people who aspire to be key persons of influence in immigration but are extremely lightweight often with no Australian legal training at all. 

The pretenders are the ones that aren’t nearly as passionate or as skilled or as experienced about immigration problem-solving as the best lawyers. These pretenders are attracted to the advice industry because you don’t need to be an Australian Legal Practitioner.… and these pretenders may or may not be qualified to give immigration advice. This space is unique because immigration is a very multicultural and personal experience so when intending immigrants seek to find a guide through the immigration maze, they turn to their countrymen and women first… and these people may or may not be qualified to give immigration advice. 

It is not very difficult to become a migration agent. Whether you are a non-lawyer or a trained lawyer, the barriers to entry into this professional services industry are strikingly low. Migration agents who are not lawyers are accustomed to hold themselves out to be skilled legal strategists. They are not. I wish I had a dollar for every time a client came to see me and referred to their migration agent or community advisor as their “lawyer”.

It takes many years, if not decades to become the best in your field and the best Australian immigration attorneys have been at it for a while. They don’t simply appear on the scene overnight. 

You may have heard of some of the leading persons of influence in immigration already. They associate with firms that have been helping migrants solve immigration problems for many many years. 

In Sydney, this would include firms like Kinslor Prince, D’Ambra Murphy and Accredited Specialists Michael McCrudden, Michael Jones and Michael Kah. 

In Victoria, Carina Ford stands out in Melbourne.

Glenn Ferguson and Helen Duncan offer brilliant immigration law advice in Queensland.

In Western Australia, Estrin Saul are the stand out firm, employing some of the smartest and seasoned persons of influence in the migration advice industry.

The best immigration lawyers are the ones that you can access when you need them. They are the ones who get you. They understand and anticipate what your concerns are and they have ideas and options for helping you deal with your immigration pain. 

They also have a nice cache of tools and skills which they bring to the table. These will often help you to avoid problems in the first place in addition to guiding you out of problems you found yourself embroiled in.

How can I help?

Your Experience?

Please share your comments with me.

I’d love to know more about your experience!

Can you appeal a decision that cancels a visa when the decision is made under section 501?

Do you have a section 501 cancellation? What should you do next? The way forward after a s.501 cancellation is different to visa cancellation under different sections of the Migration Act. The very first question is who cancelled your visa. Was the decision maker the Minister or a delegate of the Minister?

It depends on who cancelled your visa.

If your visa is cancelled by the Minister or Assistant Minister personally, then there is no right of review to the AAT. The only opportunity for appeal is in the Federal Court. In that jurisdiction you must convince a Federal Court judge that the minister made a decision which was infected with some type of legal error.

If your visa is cancelled under section 501 but not by the Minister or Assistant Minister, then you will usually have an opportunity to have the decision to cancel your visa reviewed. The opportunity for appeal is in the general division of the AAT. If your visa is cancelled by a Delegate of the Minister, we can help apply for revocation of the cancellation asap.

What is a 501 visa cancellation?

Section 501(3A) of the Migration Act states that a visa must be cancelled when the visa holder has been sentenced to imprisonment or has been found guilty of a sexually-based crime involving a child, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth. This is also called a mandatory cancellation.

What is the character test?

All non-citizens who wish to enter or remain in Australia must satisfy the character requirement. The two objectives of the character framework are:

• to protect the Australian community from the risk of harm posed by non-citizens of character concern, in line with community and government expectations and
• to maintain the integrity and public confidence in the character framework.

If you have failed to satisfy these requirements, your visa may be refused or cancelled.

What is a substantial criminal record?

The Migration Act defines a substantial criminal record. You have a substantial criminal record if:

• You have been sentenced to death or imprisonment for life; or
• You have been sentenced to a term of imprisonment of 12 months or more; or 
• You have been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.

How long will the section 501 appeal process take?

If you have appealed to the Tribunal, hearings are listed for a one day heading but this can proceed beyond one day. Decisions are received within a relatively short period of time.

In the case where the Minister and not a delegate has cancelled your visa, you’ll need to make an application to the Federal Court of Australia (not the Federal Circuit Court) and hope to have the decision quashed on the basis that the decision is infected with some legal error. The length of the appeal process to the Federal Court will be different for each case, normally 7 month give or take 3 months.

Litigation in the Federal Court is different to how cases for revocation are run at the AAT. Make sure your advisor is experienced in running section 501 appeals.

List of forensic psychologists – May help with your section 501 appeal

A forensic psychologist below might be of assistance to you in the case of a visa cancellation under section 501 of the Migration Act. Below, I’ve compiled a list of psychologists that you may wish to contact, to find somebody suitable for your needs.

Please let me know what you experience is with these psychologists and whether you are aware of others who could be added to this list.

Re-offending

Perhaps the biggest issue and winning a case where a visa has been cancelled because of failing the character test is the challenge to show to the decision-maker that there is no risk of re-offending. Of course this is very difficult to show yourself. You will, of course, feel that you are rehabilitated and you may not have any motivation to re-offend. A psychologist report might be useful to assist you to demonstrate or corroborate what in fact is the risk of re-offending.

Minister Can Deny You Again

Even if you are successful in quashing a decision of the minister in the Federal Court, your success may be very hollow. 

Winning a section 501 case can be hollow. This is because there is a power for the minister to simply remake the decision to cancel once again (except on the second occasion to learn from whatever error was made the first time around, when the decision was first made, but to again cancel the visa …. but this time do so in a manner where the decision is impeccable in the sense that cannot be challenged as having been infected with any legal error.

Where should you start?

Preferably, you would speak to an immigration lawyer like me.

At MyVisa®, we are solicitors and registered migration agents. We can act as your legal advisor before the Administrative Appeals Tribunal (“Tribunal”). We’ll brief a barrister to appear with us at your hearing and we will instruct your barrister at the hearing.

Book in a chat with me today to see if we are a good fit!