Do you need representation?
On Partner/Spouse Visa Denied? I don’t specifically recommend representation by a migration agent or lawyer for either an initial visa application or an MRT appeal. Each couple must make their own decision. These are my personal thoughts on this question. I re-iterate my statement from Applying for a partner visa?: I am NOT a migration agent. Anything I say here is said as a person, just like yourself, going through the system, sharing observations and experiences: it does not constitute formal professional advice.
On the face of it, applying for a partner visa, especially if you are legally married, doesn’t seem too difficult. Yes, there are a myriad of forms to be completed which delve into more of your family history than you yourself may actually know. I had to ask my brother and sister for some of the dates required.
You love each other, you want to be together: you may not even realise that being granted a partner visa is anything more than a formality. I know a lot of people believe if they are married, or not married but meet the criteria for interdependency, the visa will be granted. Let us be very clear this is NOT the case.
In You’ve got mail I looked at the requirements for our application, which includes children so there were a few extra forms:
- Form 26 – Medical examination X 5
- Form 40SP – Sponsorship for a partner
- Form 47SP – Application for migration
- Form 80 – Personal particulars for character assessment
- Form 160 – Radiological report on chest x-ray X 3 (not required for 2 younger children)
- Form 888 – Statutory declaration by a supporting witness relating to a partner visa application X 2 minimum
- Form 956 – Appointment of a migration agent or exempt agent or other authorised recipient X 2
- Statement of Relationship and supporting documentation – i.e. your life history together, including highly personal information that should NOT have to be provided
- Photos – but they have to be the “right” ones. Too bad if you actually don’t worry too much about capturing your romance on film.
- Birth Certificates x 6
- Divorce Certificates
- Marriage Certificate
- Certified copies of passport data pages x 6
- Police Clearances (in our case from 5 countries, totalling 6 in all)
- Documentation relating to the Hague Convention
- Proof of income of sponsor (me)
- Telephone records
- Various other bits of supporting documentation, such as superannuation beneficiary nomination forms, reports from medical staff, additional statements due to the specific case - the list is endless.
Let’s go back to the “you love each other” bit. I looked at this yesterday, but I can’t stress this enough! YOU know you love each other – your job now is to convince DIAC you love each other. THAT is not so easy. I know of several couples who were not aware they were in a position of needing to convince anyone of anything. They were married, to them that was that. One couple were denied due to not enough photos and phone records. They may have had those photos and phone records, but not submitted them! This is where representation is invaluable. The professionals have been through this hundreds of times. They know what you should submit to support your application. They know what you should cover in your “History of Relationship” statement because they know what needs to be addressed. You don’t, you’ve never written one before.
Never forget, as I point out in Emotive Reporting, perhaps?, there is a general wariness of “sham marriages”, otherwise referred to as marriages of convenience. You are working against that stigma. The figures don’t stack up, but that doesn’t stop people believing the urban myth that we all marry only for a “migration outcome”. A migration agent will be of invaluable assistance in helping you understand what you are up against in this respect.
If you are like me, you (the Australian) go into this not for a minute thinking you partner’s application will be denied. If you are a couple who have been married for six years and have three children you are probably reasonably safe. After all, looking at the statistics from the article linked to above, we can safely say (allowing for a margin of error on old stats) that around 90% of applications are successful. You have to assess what are the chances of you being in the 10% of denials. My question is, are you equipped to assess that? You are biased in your own favour!
As a rough guide, depending very much on the details of your particular case, you would be wise to allow for any appeal agent’s or lawyer’s fees to be double whatever the fees were or would have been for the initial application. How much is that you ask? How long is a piece of string, as the saying goes. Depends on the circumstances of your case. As a VERY ROUGH idea for illustration purposes only, let us say an initial application cost $5,000. It may be less, it may be more, but if your case was simple and straightforward, you would probably not be reading this! Your visa is denied and you appeal. Allow $10,000 for the appeal, a total of $15,000. That is without all the other expenses which I will look at in tomorrow’s article.
Then there is the emotional impact of the further delay. The average time for all MRT Appeals during the 2009-10 reporting year was 311 days. That is what you may have to plan for. If we look at the resource pressures the MRT is already under, this could be longer. Go to the Review Tribunal Publications page website and read the 2009-10 MRT Annual Report and appraise yourself of the figures.
In my husband’s case, I have no issue with the fact anyone could state he was looking for a migration outcome in his life. After all, he was an asylum seeker, for goodness sake. Of course he wanted a migration outcome. HOWEVER he didn’t marry me to get a migration outcome. In fact, initially he wanted us to live elsewhere. Does this sound strange to you? He liked Australia as a place, but when a country assails your credibility and removes you from their shores, do you really leap at the thought of going back? I know I wouldn’t! I nearly left myself! Not only that, there is a Federal Court case in relation to this, which I will look at in more detail shortly.
If, as in our case, the visa is initially denied, I do very strongly recommend representation to assist with the MRT appeal. Look at it this way: clearly your initial application didn’t stack up in some way in DIAC’s eyes, or you would not be in the position of having to appeal. If you did the application by yourself, you now need professional assistance to help you work out where the initial application fell short in the eyes of the Decision Maker. This is a first time thing for you, you are learning as you go. It is too important to be a “learn as you go” experience, you need to get this right.
In our situation, the Federal Court case I mentioned above was worth every cent. This is, of course, my personal opinion! I would never have known about the case or found out about it or even known to look for it had I tried to prepare the appeal by myself! That is the skill and experience a professional can bring to your case. This case was unreported.
That case was part of our grounds for appeal, as shown below.
Another important aspect is you. Like me, you may be very angry. Angry is not a good way to communicate with the department. You need an independent third-party to handle that for you. You can turn the air in your own home purple swearing your head off, but the correspondence from your representative remains professional. Your health may be severely affected, as mine has been. Again, you need a professional to communicate on your behalf.
Professional representation is not cheap. Like any profession, migration agents/lawyers come in a variety of shapes, sizes and skill levels. Interview them before you make a decision. Ask them how many appeal cases have they won if you are at the appeal stage. If it is the initial application, ask them for recommendations from other clients. Don’t accept the cheapest quotation: it might be the cheapest for a reason.
Never underestimate the worth of having a good representative that is known and respected in the industry, either. If your representative believes in you, believes in your case, I am sure this speaks volumes to those in the industry. It is human nature: we perceive a situation differently if we know someone we consider professional and experienced has a view on that situation. This doesn’t just apply to migration, but anything in life.
While this won’t help you if you are trying to join a partner in New York, Tokyo or Timbuktu, we had two lawyers during the life of our case. The wonderful Harry Grossman handled our initial application. Harry was a true marvel at the mountain of paperwork required and a very caring professional. I am fortunate to have been his client. Yes, our visa was denied: let me make it very clear this was NOTHING to do with how Harry performed professionally, but rather the view DIAC formed about our relationship. I have no hesitation in recommended Harry and I still keep him updated with our progress.
Michael Clothier of Clothier Anderson & Associates handled our MRT appeal. Michael came highly recommended and I trusted those making the recommendations. I was lucky, I believe we got one of the best there is. Michael and his wonderful staff were everything I could have hoped for. They are certainly not the only great professionals out there, but they were ours and I will never be able to truly thank them for their understanding, compassion, belief in us and their professional skill. Yes, those are the real people on the web site banner!
I am sure there are many other great lawyers and migration agents out there, but we will be forever grateful for the excellent work done by those who represented us.
No financial incentives were offered or received for the above recommendations. Publishing details of our legal team does not and is not be taken to suggest or imply they agree with, condone or have contributed to anything Team Oyeniyi have written in the past or may write in the future.