Case highlights

Cases

1. Employer sponsored, review

   Regional employer nomination refused as not genuine, set aside on review (2022)

   The situation

   a regional employer's nomination under the former subclass 187 scheme was refused on the ground that the position was not genuine. The business had been hit by the pandemic and its trading figures were weaker than before, which made the review harder.

   What we did

   we lodged the review application in time and, before the hearing, prepared a 12 page written submission setting out why the refusal was unreasonable, addressing each point the tribunal was likely to raise about the business, and tying the evidence to the legal requirements for the nomination.

   The outcome

   the tribunal (then the Administrative Appeals Tribunal, now the Administrative Review Tribunal) set the refusal aside on the afternoon of the morning hearing. The 187 visa has since closed, but the genuine position test applies in the same way to 186 and 494 nominations today.

2. Employer sponsored, review

   From a 457 to permanent residence, by way of the tribunal (2014 to 2022)

   The situation

   the client came to Australia on a 457 visa (the predecessor of today's Skills in Demand visa) in 2014. After two years with her sponsor we lodged the 186 nomination and visa under the Temporary Residence Transition stream. The nomination was refused.

   What we did

   we reviewed the file and concluded that the refusal rested on a misreading of the law, and lodged a review application in March 2019. The employer's business was affected by the pandemic while the review was pending, so the submission and supporting documents were prepared to show the position and the business as they stood at the hearing.

   The outcome

   the tribunal found for the client in April 2022 and the 186 visa was granted later that year, eight years after the first visa. The client then instructed us on parent and partner applications for her family.

3. Employer sponsored

   A natural justice letter on a 186 application, answered (2022)

   The situation

   during the assessment of a 186 application the Department found that the employer's industry licence had been cancelled and wrote to say it doubted the business was still operating. A natural justice letter of this kind is the last chance to respond before refusal.

   What we did

   we took detailed instructions from both the employer and the applicant, identified the evidence that showed the business was trading and able to employ the applicant, guided both sides in assembling it, and lodged a written submission answering each of the Department's concerns.

   The outcome

   the nomination was approved and the permanent visa granted.

4. Employer sponsored

   A full time accountant for a small business (2022)

   The situation

   a business with modest turnover wanted to nominate an accountant for a 186 visa. The obvious question was why a business of that size needed a full time accountant rather than an outsourced service.

   What we did

   we anticipated that question and answered it before it was asked. We examined the structure of the employer's group, which was more complex than its turnover suggested, selected the documents that showed the volume and nature of the accounting work, and justified the salary against the market rate for the role.

   The outcome

   the nomination and visa were granted in under four months.

5. Skilled migration

   State nominated skilled visa granted in four months, no further requests (2022)

   The situation

   a family in Tasmania received a state nomination invitation for the 190 visa on 11 January and wanted the visa lodged and decided within the program year.

   What we did

   we gave the family a document list made for their circumstances, received the material in late January, added supporting evidence on the points most likely to be queried, and lodged a decision ready application in early February.

   The outcome

   the visa was granted on 1 June without any request for further information.

6. Resident return visa

   Permanent residence recovered after an 11 year absence (2022)

   The situation

   the client's permanent visa, granted in 2006, had expired 11 years earlier. During the whole of the visa period he had spent about one week in Australia. On the face of it, his ties to Australia were thin.

   What we did

   the Resident Return visa can be granted on substantial ties to Australia where the residence requirement is not met. We went through the client's circumstances in detail, identified the ties that could be evidenced under each of the four heads the law recognises, and lodged a three page submission with the supporting documents.

   The outcome

   the application was lodged in April and the visa granted on 12 July, without any request for further information.

7. Partner visas

   Three couples granted the permanent partner visa at the first stage (2022)

   The situation

   three couples applied from outside Australia for the 309/100 partner visa. Ordinarily the temporary 309 visa is granted first and the permanent 100 visa is assessed two years later.

   What we did

   where a couple meets the long term relationship criteria at the time of application, the permanent visa can be granted without the two year wait. We assessed each couple against those criteria before lodging, prepared the evidence under the four headings the Department must consider, and presented each application so that the permanent criteria could be decided at once.

   The outcome

   all three couples were granted the permanent 100 visa directly.

8. Partner visas

   Permanent partner visa granted 23 days after the second stage was lodged (2021)

   The situation

   we had acted on the client's temporary 820 visa. Two years after the original application she became eligible for the permanent 801 stage and asked us to prepare it.

   What we did

   we lodged the permanent stage information on 1 December with the evidence limited to what showed the relationship as it then stood, rather than everything that could be collected.

   The outcome

   the permanent visa was granted on 23 December, 23 days after lodgement.