More Foreigners Can Stay While Applying For Visa

More foreigners can stay while applying for visa

The Age
September 12, 2009

FOREIGNERS whose temporary visas have expired and who are in a relationship with an Australian citizen or resident will no longer be forced to leave the country to apply for a visa to stay with their partners.

The change to immigration law, which takes effect next Monday, means that couples no longer face separation while applicants for a partner visa are forced to go offshore while they await a decision from the Immigration Department. Instead, they will be permitted to remain in Australia while their application is considered. Hundreds of people a year are expected to benefit from the change.

A spokesman for Immigration Minister Chris Evans said the rationale for the change was the practice was affecting Australians as well, because they faced a potentially long separation from their partners.

''Previously these sorts of cases could only be resolved in Australia by seeking ministerial intervention or by leaving Australia and applying offshore, which effectively splits families,'' he said. Up to 30 per cent of all cases presented to the minister for intervention involved people in that situation.

The section of the Migration Act being refined is section 48, which effectively prevents people from remaining in Australia and continuously applying for a series of visas after an application has been refused or a visa has been cancelled or expired.

But the changes will not apply to people who have previously been refused a partner visa since their last entry into Australia, or who have had a visa cancelled or refused on character grounds. Those eligible will need a sponsorship form signed by their partner and supporting statutory declarations from two other Australians.

Immigration experts welcome the change but say they need to go further, to apply to others who have family in Australia but not a partner. Immigration lawyer Karyn Anderson said greater discretion should also be given to case officers in the department on the grounds of compassion.

''For people who might have other visas that they might qualify for and they choose the wrong one because they received bad advice or their circumstances changed, they still require ministerial intervention,'' she said. ''The problem with that is the decisions out of the minister's office are not consistent and some very deserving cases are missed.''

Refugee and Immigration Legal Centre co-ordinator David Manne said section 48 sometimes had ''absurd'' outcomes, forcing the separation of Australians from their loved ones. ''It is undoubtedly the case that section 48 has operated very harshly and unjustly in some cases in the past and has caused quite needless harm to people including loved ones who are Australians,'' he said.

''We've dealt with numerous cases where the consequence has been for people to have to needlessly uproot themselves from Australia. What can happen there is it's not only the people themselves but Australians who they have very close ties with who can be harmed. It can cause real hardship to Australians.''