Secondary visa holders and the AAT Review
TABLE OF CONTENTS
134 also preserves the secondary visa holder’s visa during the AAT review process even if the secondary visa has not appealed. It means the secondary visa holders can still move freely in and out of Australia during the AAT review process with out having to obtain a bridging visa. Generally though as a matter of prudence all members of the family unit should apply for review to the AAT.
The writer has seen cases where the secondary business visa holders were not made part of the AAT appeal. Technically it does not matter that the secondary visa applicants have not appealed. If the AAT overturns the business visa cancellation decision relating to the primary applicant then s. 134(4) becomes inoperative and the cancellation of the secondary visa holders’ visa does not take effect. But it is still prudent to appeal as well to the AAT to properly argue the extreme hardship grounds.
When to apply for the subclass 155 visa
There is no prohibition on applying for a resident return visa as soon as a person meets the 2 years in 5 residence criteria. The 2 years is measured by the numbers of days physically present in Australia. It is advantageous to apply for the subclass 155 as soon as possible because it makes the visa holder immune from cancellation under the business visa cancellation regime, particularly so for the secondary visa holders.
It does not matter that the original business visa may have years to run because of the effect of s. 82 of the Migration Act which says:
82. When visas cease to be in effect
(2) A substantive visa held by a non-citizen ceases to be in effect if another substantive visa…for the non-citizen comes into effect.
Where to be to apply for the subclass 155 visa
Application should always be made for the subclass 155 visa when in Australia. This does 2 things – one it gives the applicant merit review rights and if necessary the right to apply for a bridging visa.
The grant criteria states:
155.4 CIRCUMSTANCES APPLICABLE TO GRANT
155.411 If the application is made outside Australia, the applicant must be outside Australia at the time of grant.
155.412 If the application is made in Australia, the applicant must be in Australia, but not in immigration clearance, at the time of grant.
The applicant should be prepared to wait in Australia until the visa is granted otherwise the applicant could be refused if overseas when the visa grant decision is made.
If the applicant has not been a genuine business migrant don’t expect any sympathy or favours from DIMIA.
But once a notice to cancel a business visa has been issued, it is too late to apply for the RRV.