Fundamental distinction between the 820 visa and 309 visa
1.To
Chares Newman
Sub: Information regarding Partnership Visa
This is in reference to your inquiry with respect to the Australian Partnership visa. The following information shall address all your queries related to the visa.
Fundamental distinction between the 820 visa and 309 visa
In order to obtain a partnership visa in Australia, the applicant may apply for two types of partnership visas, namely, the subclass 820 visas and subclass 309 visas. The validity of the partnership visas is two years.
Subclass 820 visa
An applicant may apply for a Partner Temporary Subclass 820 Visa if the applicant is in a de facto relationship with an eligible New Zealand citizen, Australian citizen or a permanent resident of Australia. The applicant for this visa must be dwelling in Australia while applying for this visa. In order to become eligible for applying a subclass 820 visa, the applicant must satisfy these conditions.
Further, the subclass visa shall permit both the applicant and the de facto partner live together in this country. The applicant shall become entitled to study, work and proceed with enrollment in Medicare in Australia. In addition to the application for subclass 820 visas, the applicant may also apply for the subclass 801 visa to obtain permanent residence in Australia.
Subclass 309 visa
An applicant may apply for a partner subclass 309 visa, which will permit an applicant in de facto relationship or spouses, obtain temporary resident status. The applicant must not be residing in the country while applying for this partner visa. In order to be eligible for applying this visa, the applicant:
- must be above 18 years of age;
- must be involved in a de facto relationship for at least 12 months;
- must have de facto partners who is an eligible New Zealand citizen, Australian Citizen or permanent resident of Australia;
- must have de facto partner who sponsors the applicant;
- must not relate to any common parent;
In your case, it is important to establish that you are in a de facto relationship with Heather Smith. Further, the 12-month relationship condition can be waived by the applicant provided the de facto relationship is registered or the de facto partner possesses a permanent humanitarian visa. In the absence of this condition, the 12-month visa requirement must be fulfilled. The Partner Visa Subclass 309 shall entitle the holders to enter into the country, obtain Medicare enrollments and even earn a living in the country.
The fundamental distinction between two classes of visa is related to the dwelling of the applicant. The applicant for a subclass 309 visa must not be living in the country while applying for this visa whereas the applicant for a subclass 820 visa must be living in the county while applying for this visa. Another significant difference is that the applicant for 309 visas may apply for subclass 300 visa to obtain permanent residence but the applicant for 820 subclass visa, the applicant may apply for a 801 visa.
Subclass 820 visa
Conditions of a valid visa application
As per the provision set out under section (45) of the Migration Act 1958, the Minister for Immigration and Citizenship permits a non-citizen to enter into Australia and reside as well as travel within the country. The requirements of a valid visa application is set out in a legislative scheme as stipulated under section (45), (46) of the Act, Regulation 2.10 and Schedule 1 and Division 2.07 of the Migration Regulations 1958. In order to render a visa application to be valid, it must satisfy that:
- it is related to any specific class of visa;
- the particular form for the specific visa has been completed complying the instructions of the form;
- it must entail residential address of the applicant;
- it must include the relevant visa application charge (VAC) set out for each visa in the Schedule 1 of the Regulations;
- it must specify the requirements related to the visa application such as location and the presence of applicant stipulated in the Regulations;
The Department must be acknowledged with essential information related to the application of the visa and the visa may be withdrawn at any time before the visa is made. Any changes in circumstances must also be informed to the Department. It is mandatory to comply with the visa conditions that is attached to the visas otherwise any non-compliance shall amount to cancellation of the visa.
Consequence of invalid visa application
If a visa application is rendered as invalid, the applicant shall obtain refund of any fees paid or charges levied under Schedule regarding the visa application. However, an invalid visa does not prohibit an applicant to apply for visa rather it allows the applicant to apply for another visa.
An invalid visa application shall invalidate a bridging visa that was approved along with the visa application within 28 days after the visa application is rendered invalid. Any bridging visa that is disregarded by the Department of Immigration and Citizenship [DIAC] shall not be held by the visa applicant.
Yours Sincerely,
2.To
Roland
Sub: Information regarding Visitor visa Class FA subclass 600
Dear Roland,
The Visitor visa Class FA subclass 600 that you are holding at present imposes certain conditions as per the Migration Act and Migration Regulations. The visa imposes conditions 8503, 8101, 8558, 8501 and 8201 upon you, which must be complied with to avoid cancellation of the visa.
Work condition [8101]
This condition restricts the visa holder from engaging in any work within the country except non-voluntary works and contravening this condition will lead to visa cancellation.
No Further stay [8503]
This condition obligates the visa holder to leave the country after the expiry of the visa. This condition has been stipulated under regulation [2.05(4)] but the Minister may waive this right under certain exceptional circumstances provided the visa holder requests for waiving the condition in writing. Such circumstances must be:
- compelling and compassionate;
- beyond the control of the via holder;
- resulting in significant change in the position of the visa holder;
Subclass 309 visa
Condition [8558]
The visa holder shall not be permitted to reside within the nation for more than 12 months but within the 18 months period.
This condition requires Ronald to satisfy the following requirements:
- he must establish that he is in a de facto relationship with Jeanette Queen for at least 12 months prior to the lodging of the visa application;
- he must have a valid passport;
- his relationship with Jeanette Queen must be of ongoing without any interferences;
Study Condition [8201]
The visa applicant is not permitted to pursue any study course or training for more than 3 months under this visa condition.
Health Cover Condition [8501]
The visitors who enter into the country are obligated to take health cover while the visa holder is living in the country.
Under the given circumstances, it can be stated that since you have been granted with Visitor visa that have certain conditions imposed like no further stay, which will prohibit hi form applying for another visa and have to leave after the expiry of visitor visa. However, you may provide a written request to the Minister to waive the visa but since such application was not made prior to the application of the visa, you cannot waive the condition thus, you are barred by the legal provisions of the Migration Act to apply for another visa. Hence, a written request must be provided by filing the form 1447 ‘No further Stay’ to the Minister. The Minister will waive the condition provided the circumstances are compassionate and compelling that have brought about significant changes in your life, which are beyond your control.
Yours Sincerely,
3.The registered migration agents have to comply with the Code of Conduct as set out in the Migration Regulation 1998 (Cth) Schedule 2. As per Part 11, an agent is obligated to display a copy of the code is placed at a conspicuous place in the office of the agent where the agent deals with the clients and the copy is visible to the clients.
The clients shall also be provided with a consumer guide copy and the agent must record the same.
According to Part 3 of the Code, in particular, paragraph 3.1 and para 3.2 stipulates the obligation of a migration agent towards client with respect to maintaining of client confidentiality as well as the confidentiality of the information provided by the client.
As per the facts of the case, the infrastructure of the office is small where clients that visits the office can completely see the files of the other clients which implies that it amounts to breach of confidentiality under Para 3.1 committed by the agent. Further, when the agent informed Charles about the visa status of John, it also amounted to breach of confidentiality of information provided by the clients. The sharing of information provided by one client with another client without his consent is breach of confidentiality of client information under the Migration regulation 1998.
Moreover, as per clause 2.1 of the Migration Agents Regulations 1998, a registered migration agent is obligated to deal with his clients competently, diligently and fairly. Clause 2.9 of the Regulation prohibits a registered migration agent from filing a visa application that contains false statements or which the agent believes to be misleading and inaccurate.
Furthermore, clause 2.9A also prevents a migration agent from withholding any relevant information relating the particular visa application from the authority. As a migration agent, it would have amounted to a breach of the regulation if I had not revealed every related information about the respective visas of Ronald and Charles to the Immigration Department.
I have committed breach of Part 3 of the Code of Conduct by sharing confidential information of one client to another and have failed to provide a consumer guide to both Ronald and Charles. Due to the small structure of the office, the files are visible to all the clients, which is also a breach of confidentiality. Moreover, the copy of the Code of Conduct is also not placed in the office at a conspicuous place to ensure it is visible to all the clients.
Apart from these two violations of the Code of Conduct, I have not encouraged either clients with false information or to lodge any visa application that cannot be rendered as valid by the Immigration Department. It would have resulted in the breach of clause 2.9 that prevents an agent from encouraging to lodge a visa application which contains misleading or deceiving statement
Department Of Immigration And Citizenship INVALID VISA APPLICATIONS (Commonwealth OMBUDSMAN, 2009) https://www.ombudsman.gov.au/__data/assets/pdf_file/0020/26192/investigation_2009_10.pdf
Immigration And Visas | Australia.Gov.Au (2018) Australia.gov.au https://www.australia.gov.au/information-and-services/immigration-and-visas
Migration Act 1958 (Cth)
Migration Regulation 1994 (Cth)
Migration Regulation 1998 (Cth) Schedule 2
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