# Help after 457 visa was denied!



## emski_86 (Apr 5, 2014)

Basically i was hoping someone would be able to give me advice on whether i can apply for a partner visa with my girlfriend who i have been living with for the last 12 months. Unfortunately though i was refused a 457 visa yesterday through my current work employer. This was lodged in Feb and i've been waiting to hear back, my employer had to apply to nominate me and for some reason which i am unsure on the nomination was refused which meant my 457 was refused. My boss has used a certain migration officer before so when he looked into it he said it was a fault on behalf of my employer and not myself. I have now 28 days to leave the country, in which time the migration officer said he would reapply for a nomination on behalf of my employer which will be successful then offshore i can apply for another 457 visa. 
I am now thinking that the 457 visa is not the best option for me, and i am thinking that i should get a partner visa with my girlfriend. I am worried that due to the previous denial this will affect the partner visa i want to apply for even though it was not a fault on my part. The migrant officer said i should leave while he sorts it which could be up to 6 weeks and that doing this 457 instead of a partner visa would be more consistent. Also i have been ready information on the partner visa, even thought i have to leave the country in 28 days is it correct that i can apply for a partner visa without leaving the country? because if this is correct it would help my greatly but not having to spend money leaving & returning. 

Any help regarding this matter would be greatly appreciated.


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## MarkNortham (Dec 19, 2012)

Hi Emski -

Sorry to hear of your 457 refusal. Section 48 of the Migration Act states that even with an onshore refusal, you can still make a valid application for a partner visa. The real question, of course, is whether your relationship with your partner qualifies for a partner visa application. Would suggest you sit down with a qualified registered migration agent familiar with partner visas to assess your eligibility for this visa. In terms of "consistency", I can see where a partner visa lodged quickly after another type of visa refusal may come under additional scrutiny by DIBP (immigration dept), however I'm not sure what sort of nomination problems your employer is facing and whether they are fixable.

The issue is that if you go offshore with no visa to return and the employer problems are not sorted out, you'd have to find another way to return to Australia to lodge an onshore partner visa application - these tend to be preferred by applicants who are already here, since they result in a bridging visa upon application that allows you to remain in Australia with full work rights for the duration of the partner visa processing (can be 9 - 12+ months). If you lodge offshore (for instance, if the 457 situation doesn't work out and you're stranded offshore), there is no bridging visa available and you'd be left to find some other visa to come back to be in Australia while the partner visa is being processed.

Hope this helps -

Best,

Mark Northam


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## kangaroogirl (Aug 25, 2012)

Hi,

Sorry to hear about the denial 

Marks response was much more articulate than mine so I've edited my response out!

Good luck


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## emski_86 (Apr 5, 2014)

Thank you for the great information. 

I believe we are eligible for this as we have proof that we have been living together for 12 months. I thought that originally going down the 457 visa route was better then being tidied to my girlfriend incase anything went wrong between us but now this has happened with my employer i think i am safer to apply for a partner visa.

Would you think it would be acceptable if we collected our information & applied for the partner visa perhaps in 2 weeks? I'm hoping that by doing this my current bridging visa that ends at the beginning of may will then be changed to the temporary partner visa, meaning that i dont have to leave the country?


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## emski_86 (Apr 5, 2014)

Also i was told by a lovely lady that works for immigration that if i left the country & then came back that i would be on a tourist visa, and that on that i could apply for a partner visa? does that sound correct?


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## MarkNortham (Dec 19, 2012)

Hi Emski -

That could be correct, however if that visitor visa has condition 8503 attached, you may not be able to apply for a partner visa upon your return. This is somewhat rare for UK citizens (I'm assuming that based on your flag here in the forum) however it's something to consider. Also, if you have an established record of working and living in Australia, then attempt to come back on a visitor visa, there could be some concern on behalf of DIBP as to whether you were genuinely here as a temporary visitor or here for something else more permanent in nature (ie work, lodging a partner visa, etc).

It's important to remember that DIBP is not permitted to give migration advice re: choice of visas, etc, and any advice given by them on the website or by phone has no legal standing - ie, if you depend on phone advice from DIBP and things go wrong, you can't come back and use as a defence that you depended on their phone advice, etc. Better to research it yourself and make sure you're 100% satisfied that you understand any of the regulations that apply to your particular case and visa application.

Hope this helps -

Best,

Mark Northam


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## emski_86 (Apr 5, 2014)

Would you think it would be acceptable if we collected our information & applied for the partner visa perhaps in 2 weeks? I'm hoping that by doing this my current bridging visa that ends at the beginning of may will then be changed to the temporary partner visa, meaning that i dont have to leave the country?


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## MarkNortham (Dec 19, 2012)

Hi Emski -

Without seeing your application and evidence I can't suggest when to lodge or whether you have sufficient evidence. There is very little chance your provisional partner visa (or permanent) would be issued by May. If you are already on a bridging visa A (I assume?) and you've been on that bridging visa for more than 28 days as of the date you lodge your partner visa, you would likely then receive a Bridging Visa C with no work rights related to the partner visa - this would activate when your current bridging visa ceases and would allow you to remain in Australia until the partner visa decision is made. You can apply for work rights to be added to the BV-C if you can show financial hardship. However, you can't leave Australia on that BV-C without it ceasing and you'd have no visa to re-enter on - something to consider.

Hope this helps -

Best,

Mark Northam


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## emski_86 (Apr 5, 2014)

thank you for all your helpful information, its been brilliant.

Can i just ask what action u personally think i should take? time is running out for me & after getting all the relevant information on everything i have no idea what to do next?


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## MarkNortham (Dec 19, 2012)

Hi Emski -

I'd like to answer your question, but I don't have enough information to assess how effective a partner visa application you have. Plus, as a registered migration agent, when I give advice or opinions on specific migration matters, I have a legal responsibility that extends to that advice - if the advice is incorrect (regardless of whether I knew about all the details or not), I can be liable. 

If you'd like to book a consultation session, that would give us the opportunity to review the specifics of your case and I could look at what relationship evidence you have and give you more specific advice once I know more about the case - link to our website is in my signature below.

Best,

Mark Northam


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## emski_86 (Apr 5, 2014)

thanks Mark, ive gone through & booked an appointment for monday. 

cheers for all your help this far.


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## MarkNortham (Dec 19, 2012)

Thanks - looking forward to assisting you and sorting out all the details -

Best,

Mark Northam


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## Maggie-May24 (Jul 24, 2011)

emski_86 said:


> thanks Mark, ive gone through & booked an appointment for monday.
> 
> cheers for all your help this far.


I was going to suggest it'd be a good idea to see a migration agent to give you the best chance of being able to remain in Australia and work while you have a visa application processing. Good luck!


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