22
Sep

No Guarantee for Permanent Visa After Temporary Visa is Granted

If a subclass 820 partner visa (temporary) is granted, it is thought to be only a matter of waiting a couple of years till the subclass 801 partner visa (permanent) is granted as well. However, the recent case of an Indian citizen handled by Judge Heffernan on 7 September 2016 proved that a granted temporary visa does not actually ensure a permanent visa afterwards.

The applicant produced documents of his marriage with the sponsor, an Australian citizen, and was granted for a temporary residence visa, but as he applied for a permanent residence visa, things stopped working for him. The Department of Immigration got indications implying that the marriage was fabricated and not genuine.

An officer was sent to India to verify this and the applicant’s younger brother claimed that he was not in a relationship and did not plan on marriage until getting a permanent residence visa. As the Department sent a natural justice letter to the applicant, he produced elaborate documentations that he thought would be evidence of the relationship. However, that failed to impress the court about the genuineness of this relationship.

The applicant showed a joint account with the sponsor, but there was no evidence of the sponsor ever using that account. And the only joint asset he could show was a car. In addition to this, further evidences from the applicant’s mother proved that the applicant was supported in Australia by his family and friends rather than the sponsor, whom she had never met, and, to her knowledge, the applicant and the sponsor were going through a separation.

The applicant defended that he was working to resume the relationship with the sponsor and was hoping to live with the sponsor again, but failed to mention the sponsor in his discussions about future plans.

The last nail on the coffin was the sponsor herself, who did not answer to the hearings’ summoning. The Tribunal made several attempts to contact her, but she didn’t turn up to provide evidence regarding the relationship. As a result of all these, the application for subclass 820 partner visa was rejected by the court.

The applicant chose to call for a review and then took it to the Federal Court, but the evidence was against him, and didn’t convince the court. He said that the initial investigator should have spoken to more family members other than his brother and claimed that the relationship has failed due to the natural justice letter sent by the department, which he called unfair. He also stated that the Tribunal should have made a greater effort to contact the sponsor, which the Tribunal isn’t actually legally obliged to do. Both of these claims were swatted aside and his visa application was totally rejected.

This case went on to show that a temporary visa does not guarantee a permanent visa later, and also that legal documents of marriage alone would not stop a court from finding out the truth.