Philip’s Current Visa Status and Work Rights
Philip's initial Student (Subclass 500) visa expired because he forgot to renew it on time.In addition to that, his subsequent application for a new Student visa was also refused. This refusal places Philip in a vulnerable position as per Australian immigration law. In consonance withSection 82 of the Migration Act 1958 (Cth),a visa ceases on the expiration of its validity period. Keeping this in hindsight, Philip has been without a valid substantive visa since the expiration of his initial Student visa[1].
In a similar vein, after the refusal of his second Student visa, Philip is currently an unlawful non-citizen. This is a status that is legally defined as per Section 14 of the Migration Act 1958.The definition is that someone who resides in Australia without a valid visa is called as an unlawful non-citizen[2]. This automatically makes him subject to removal from Australia, unless he takes immediate measures exigently for the sake of regularizing his immigration status. However, since he lodged a Partner (Subclass 820/801) visa before the refusal of his second Student visa, he is on a Bridging Visa E (BVE) under section 195 of the Migration Act 1958. This visa allows individuals to remain in Australia while they resolve their immigration status[3].
Now as far as work rights areconcerned, in line with a Bridging Visa E are not automatic. Regulation 2.43 of the Migration Regulations 1994, work rights on a Bridging Visa E are only granted in cases where the applicant can legally depict financial hardship[4]. Philip’s note evinces that he is financially dependent on his partner, Cara. On top of that, she controls his finances.This leaves him with no financial independence at all. This dependency on Cara and his claims of abuse place him in a situation of financial hardship, which otherwise could legally be construed as fertile ground for applying for work rights under his Bridging Visa.
All in all, an inference can be drawn that Philip should havesubstantial legal evidence regarding his financial hardship directlyto the Department of Home Affairs.This would Intel appropriatedocumentation of his lack of income, his inability to access his own financial accounts along with his complete reliance on Cara for basic needs. Equipped with this evidence, Philip stand a chanceto obtain work rights while on his Bridging Visa E.
Pathway to Permanent Residence and Required Information
Philip has already applied forPartner (Subclass 820/801) visa. This will aid him to seek permanent residency.This visa is a two-stage process, with the temporary Partner visa (Subclass 820) being granted first, followed by the permanent Partner visa (Subclass 801) after a specified period. This takes around two yearsusually to legally process.
However, keeping the circumstances of domestic violence in Philip’s relationship in hindsight, he is also eligible to apply under the family violence provisions. These provisions allow a Partner visa applicant to continue their visa application even if their relationship with the sponsor has broken down, provided the breakdown is due to family violence. Section 4AB of the Migration Act 1958 defines family violence are broadly includedof physical, emotional or psychological abuse - all of which Philip has reported.
Steps Required:
- Notifying the Department of Home Affairs: The first course of action that Philip should perform is to inform the Department that his relationship with Cara has broken down. He should also cite the reasonof family violence as well. This can be accomplished by lodging a form with the Department. This would notify them of the change in circumstances. This is legally required under Section 104 of the Migration Act 1958. This section mandates that visa applicants must notify the Department of any changes in circumstances that could affect their visa application.
- Providing Evidence of Family Violence: Philip must furnish apt evidence of the abuse he has experiencedfor the sake of proceeding with his Partner visa application. Regulation 1.23 of the Migration Regulations 1994 vividly delineates the categories of evidence that are acceptable to legally prove family violence.
- Judicial evidence: Phillip should actually look for court orders, such as domestic violence protection orders. Since this would inherently be apt evidence in Philip’s case. Apart from that, since he has reported the violence to the police, he should obtain any police reports as well as records of his interactions with law enforcement. This needs to be substantiated[5].
- Non-judicial evidence: Statutory declarations from professionals such as medical practitioners, social workers as well as family violence falls under the category of non-judicial evidence. Philip’s injuries, namely the bandaged hand and limp, are legally posited that he has sought medical treatment. He should request a written statement from his doctor that can be legally confirmedthat the injuries and linking them to the domestic violence he has described. In addition to that, he can obtain a statutory declaration from the police officers he has interacted with.
- Continuing the Partner Visa Application: Once Philip has notified the Department of the breakdown of his relationship and provided evidence of the family violence, his Partner visa application will continue to be processed under Regulation 1.23 of the Migration Regulations 1994[6].
- Work Rights While Awaiting a Decision: Philip’s Bridging Visa E does not automatically grant work rights.However, he can apply to have the conditions of his visa varied in Section 197B of the Migration Act 1958, which allows for work restrictions to be lifted in cases of financial hardship. Since Philip is financially dependent on Cara and has no access to his own finances, he is likely to be considered for work rights under this provision[7].
Additional Information Required:
- Medical reports: Injuriesof Philipshould be documented by his treating doctor. These medical records will serve as evidence of the abuse he has suffered.
- Police reports: Philip mentioned that he went to the police regarding the violence. Any police records or statements will help to substantiate his claim.
- Financial documents: Philip should provide evidence of his financial dependency on Cara, such as bank statements showing that his accounts have been blocked or controlled by her.
- Witness statements: If there are any witnesses to the violence or the aftermath (e.g., neighbors, friends), their statements could be valuable evidence in Philip’s case.
Work Rights While the Visa Pathway is Being Assessed
Philip’s ability to work while his Partner visa application is being processed is contingent upon the conditions attached to his Bridging Visa E (BVE). In fact, from a legal standpoint, Section 195 of the Migration Act 1958 delineates that individuals who no longer hold a substantive visa, like Philip, are often granted a Bridging Visa E[8]. This visa permits them to remain lawfully in Australia while they resolve their visa status - in this case, while his Partner visa (Subclass 820/801) is being assessed.However, work rights under Bridging Visa E are not automatic. Regulation 2.43 of the Migration Regulations 1994 legally articulates that holders of a Bridging Visa E generally face restrictions concerning employment, unless they can demonstrate financial hardship[9]. In this case, Philip’s note detailed his dependency on Cara and his inability to access his own financial resources. This firmly substantiates financial hardship.
The Department of Home Affairs defines financial hardship as an applicant’s inability to meet basic living costs due to their visa status or other circumstances beyond their control. In Philip’s case, Department of Immigration and Citizenship v. Lin [2012] FCAFC 72, the court ruled that financial hardship must be assessed on a case-by-case basis, considering the applicant’s specific circumstances[10]. Cara controls all his finances, thereby restricting his access to even rudimentary necessities. This is also seen in the case of dependence exacerbates his financial hardship. In lieu of the fact that he is not only unable to work but also has no control over his funds.
Domestic Violence as a Compelling Circumstance
In addition to financial hardship, Philip's situation also entails domestic violence, a significant factor that may expedite his work rights application. The Migration Regulations 1994, under regulation 1.23, recognizes the seriousness of domestic violence cases and provides special provisions for individuals in abusive relationships to continue their visa pathways, even if their relationship with the sponsoring partner has broken down. Given that domestic violence survivors often experience financial control and isolation from support systems, the Department may prioritize Philip’s request to lift work restrictions due to the urgency of his situation[11].
A real-world example of the interaction between domestic violence and immigration law can be found in the case of Singh v. Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1827. In this case, the applicant, a survivor of domestic violence, successfully argued that her abusive relationship had left her in financial and emotional distress. The court considered her claims and allowed her to proceed with her visa application independent of her partner. Similarly, Philip’s note reveals a scenario where he is controlled, isolated, and subjected to abuse, strengthening his case for work rights under the family violence provisions[12].
The Department’s Domestic Violence and Immigration Policy also delineates that visa applicants who can prove domestic violence are eligible to have certain conditions waived. This also entailed work restrictions. This policy affirms that survivors of domestic violence are not disadvantaged or placed in further harm due to their immigration status. Philip’s circumstance aligns with these guidelines, particularly because he is financially dependent on his abuser. This places him in a precarious position both financially and emotionally[13].
Application for Lifting Work Restrictions
Philip’s next step is to formally apply to have his work conditions lifted by demonstrating his financial hardship and the impact of domestic violence. Under section 197B of the Migration Act 1958, visa applicants like Philip can request that the Department of Home Affairs vary the conditions of their Bridging Visa, including lifting any work restrictions[14]. This provision is particularly relevant to individuals who. Since due to financial hardship or other compelling circumstances, such applicants need to support themselves while awaiting the outcome of their substantive visa application[15].These documents would substantiate Philip’s claims and increase the likelihood that the Department of Home Affairs will grant him work rights. This is referred to in SLSA v Minister for Immigration [2011] FCCA 1109, where the court judiciously delineated that documentary evidence contributed immensely in lifting work restrictions as far as visa applicants experiencing financial hardship due to family violence is concerned[16].
Impact of Work Rights on Visa Processing
Once Philip’s application to lift his work restrictions is submitted, the Department of Home Affairs will consider the urgency of his situation. If his financial hardship and domestic violence claims are accepted, he will be granted permission to work while his Partner visa (Subclass 820/801) application is processed.
The Department has the legal authority to expedite his application for work rights due to the combination of financial hardship and domestic violence. This is consistent with their Compassionate and Compelling Circumstances policy[17]. This actually allows for the rapid processing of cases in instances where an applicant is experiencing significant hardship. Philip’s circumstances vividly can be categorized as within these guidelines. Since his financial dependence on Cara and the ongoing abuse.
