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Business Visas – The meaning of “main business” in a Visa application

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The meaning of “main business” in a Visa application The Federal Court in the case of Synman & Anor v Minister for Immigration & Anor (2015) considered the meaning of “main business” in migration law in the context of several businesses being operated. The visa applicant in this case was one of two shareholders, and he owned 50% of the shares in a company (“Cutman”) incorporated by him and his son. Since its incorporation, Cutman had operated five businesses in Australia: a hair and beauty business, a meat business, a “fusion” business; an engine monitoring system business and a cafe. All...

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“Compelling reasons” in partner visa policy broadened

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“Compelling reasons” in partner visa policy broadened In March 2016, the Full Federal Court made a very important decision about Departmental policy in regard to compelling reasons in partner visa applications. This decision significantly broadened the circumstances which can be taken into account by the Department or the Tribunal in considering whether there are “compelling reasons” for waiving “Schedule 3” requirements. (These terms are discussed in more detail below.) Which visa applicants are affected by this decision? This decision affects some applicants for onshore partner visas (Subclass 820/801 visas). What is the Schedule 3 requirements for Subclass 820/801 visa applicants? Schedule 3 requirements are complex...

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Family Law – Things to consider when partners separate

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Do you have a friend or relative who has just separated? If so, the information below should help. What is meant by separation? Separation in Family Law is defined as the bringing to an end of a marriage or de facto relationship (which also includes same sex couples). There is no need or ability to register a separation under Australian Family Law. Separation is a fact which must be proven if it is disputed by the other party at a later time. In the case of a divorce, the date of separation is recorded on the Application for Divorce and is sworn...

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“Militant” refugee

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Background Our client, an Indian citizen, was discriminated against because he was a prominent Sikh. Police in India viewed our client as a prominent militant, and he was repeatedly tortured and detained on numerous occasions. Even when he was on release, he was kept under surveillance and as a result had difficulty finding work. He escaped to Australia on a temporary resident visa, with his wife and children remaining in India. Immigration, while acknowledging there was a real chance our client would be persecuted if he returned to Punjab, found that he could safely relocate to other parts of India. It therefore...

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Spouse visa: remarriage to first wife

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Background Our client left his home country of India (leaving his family behind) due to religious persecution. After remarrying an Australian and gaining permanent residency, he divorced. He then wanted his first wife in India and their four children to come to Australia under a spouse visa. Immigration took the view that our client was not a credible witness, and rejected the application. Our involvement We appealed against this decision to refuse the visa. Carefully preparing our client’s case, we effectively provided the “vital missing evidence” that was critical to the success of our client (arguing a strong public interest criteria). Because of...

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Waiver of cohabitation requirement

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Background In this case our client applied for a spouse visa after having been in a relationship with her partner for 17 months. For most of their relationship, however, the couple had lived separately and maintained separate households. The visa application was rejected by Immigration on the grounds that for the 12 months before the application, the couple had not actually been living together. Our involvement For the appeal, we drafted detailed statutory declarations for our client detailing the circumstances of the couple’s relationship and the reasons for their decision to live apart for much of the relationship. We made carefully argued submissions...

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Proving direct and continuous involvement in a business

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Background The applicant had held a sponsored 457 temporary business visa on which he had travelled extensively, including many trips to China, at the time that he applied for a Business Skills Residence visa. In his application he relied on owning and managing an Australian business. Before our involvement Immigration had determined that the applicant’s frequent travel overseas must have precluded him from managing his business in Australia as he was often absent from it. Immigration concluded that the applicant had therefore not maintained direct and continuous involvement in management of his business from day to day, and told him he...

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Visa refused without proper reasons

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Background The applicant travelled to Australia on a four-year visa. After working in Australia for approximately two years and prior to instructing us, the applicant and his large family applied to the Department for a permanent employer nomination visa. This visa application was refused. When the Department sent the decision to the applicant it was not correctly addressed to the client and did not contain proper reasons as to why the applicant’s visa was refused. The applicant did not appeal this decision to the Migration Review Tribunal within the normally allowed time. As a result, when he did appeal to the Migration...

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De Facto Spouse Financial Aspects

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Background Our client entered Australia on a student visa and remained on various student visas for four years. While in Australia she met an Australian citizen with whom she started a lasting relationship. Although they were living in an exclusive relationship, they were not married and Immigration refused to allow the applicant to remain as a de facto spouse of an Australian citizen. (A de facto marriage is a relationship that is in all respects the same as a traditional marriage except for the absence of any official certification). Our involvement In order to prove that a de facto marriage exists the following...

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Health waiver: videotape evidence

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Background This is a case in which our client, her mother, two older brothers and grandfather were all nominated by our client’s father to come to Australia where he had established a successful business. They had all met the visa requirements except for one, which was that our client did not meet all the ‘public interest’ health criteria. Our client had some serious medical problems as well as some cognitive difficulties. Immigration took the view that our client would cost Australia too much in medical expenses and that she would be unlikely to get employment. Our client was given the opportunity to...

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