Complex Visa Matters

Character Issues

One of the foundational requirements of Australian immigration law is the ‘character test’. The ‘character test’ is a prism through which the Department of Home Affairs assesses whether a visa applicant's criminal history will prevent grant of a visa, or if a visa holder can continue to hold one.
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Section 501 of the Migration Act 1989 defines the ‘character test’. The legislation (and Ministerial Directions) is quite broad in application; however, some examples of why an applicant (or visa holder) may not pass the character test can include:

They have a substantial criminal record
They pose a threat or danger to the Australian community
The Minister believes the person is not of good character due to their past of present conduct.

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Health Waivers

Another fundamental requirement for a visa grant is the health requirement. For most visas, an applicant should be:

Free from a disease or condition, in which they would required health care or community services; and
The provision of such care or services should not result in significant cost to the Australian community or prejudice the access of an Australian citizen/ permanent resident to such care or services.

Otherwise, if the applicant cannot meet the health requirement, they may be eligible for a ‘health waiver’ in some instances. In these cases the Department considers a broader range of factors if an applicant's health condition is serious enough.

Contact us if you’d like assistance with a health waiver or if you are unsure whether you will meet the health requirement for grant of a visa.

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Schedule 3

Partner visa applicants in Australia that hold a bridging visa or are unlawful non-citizens, must contend with ‘Schedule 3’ criteria. In essence, the Schedule 3 requirement is that the applicant:

does not hold a substantive visa due to factors beyond the applicant’s control
there are compelling reasons for the grant of the visa
the applicant has complied substantially with their last visa or permit, including any subsequent bridging visas

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Notice of Intention to Consider Cancellation, Refusal or Sanction

The issuance of any of the following notices is a serious step taken by the Department. It may indicate a range of issues, for example:

A Standard Business Sponsor has breached it's approval obligations, such as failure to keep records of payment of employees, or other breaches in workplace law.
The Department has become aware that an applicant for a visa, or a visa holder, has a 'substantial criminal record' that has not been declared.

Responding to such notices needs a careful and effective response. Contact us if you have received a notice and need assistance.

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Case Study

A Barrage of Complexity

A client approached us with a range of issues concerning a Partner visa application. He had been in Australia unlawfully for several years, married an Australian partner and together had a child. The visa he used on first entry to Australia had a ‘no further stay’ condition attached to it – meaning he would under most circumstances not be able to apply for a further visa while in Australia. His Australian partner had developed a medical condition preventing her from working and caring for their child.

To top everything off, he was recently diagnosed with a medical condition that may have jeopardised his ability to meet the health requirement. We set out with a steady approach in dealing with all the competing issues. We dealt with the ‘no further stay’ condition by applying for a waiver based on the Australian partner’s medical condition. We advised the applicant to undergo pre-visa application medical testing with a medical expert familiar with Australian visa health requirements.

Satisfied that the visa applicant’s medical condition would not likely cause an issue for the application; we set about ensuring we addressed the Schedule 3 criteria. We submitted that in the best interest of the Australian child, it was imperative for her father to remain in Australia.

Despite all of the complexity, happily, the visa was granted – a fantastic result.

Complex Matters

Character Issues

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$13.70

Health Waivers

Schedule 3

$13.70

$13.70

Notice of Intention to Consider Cancellation, Refusal or Sanction

Case Study

Ready to get your visa application in focus?