The answer to the above question is yes but please keep reading this article as you will find useful information about the Australian visa system.

As there has been in the news and announcements by the Department of Immigration and Border Protection, illegal maritime arrivals (IMAs) who entered Australia after 13th of August 2012 and also illegal maritime arrivals who arrived before that date and they applied for permanent protection visa and their visa was not issued before 16 December 2014, will be granted a temporary protection visa (TPV or SHEV) and never be granted a permanent protection visa. This regime of visa is unfair and has been discussed against human rights of asylum seekers in UN and human right activist groups. However, Australian government used this system of visa to stop the boats coming to Australia illegally and risked life of asylum seekers.

Under current policies, those asylum seekers mentioned above will never be granted a permanent protection visa (However, the policies can change in future if government change). Also those IMAs can only apply for TPV or SHEV visa while they are ‘Onshore’. The only possible option to apply for permanent visa onshore is SHEV pathway. Basically SHEV holders need to live, work or/and study in regional areas which introduced by DIBP for 3 and a half years to be able to apply for non-protection permanent visa onshore (such as Partner, General Skill Migration, Employer Nomination Scheme, RSMS and …). More information can be found in another article in our website about TPV or SHEV visas.

So, Basically the option for these asylum seekers to be able to apply and grant a permanent visa while they are onshore is not easy. However, they can apply for any kind of offshore visas. So what is the difference between ‘Onshore’ and ‘Offshore’ visa applications?

Onshore visa applications can be applied while the applicant is inside Australia and normally the applicant will be granted a bridging visa while DIBP processing that visa application (for example a student visa holder who apply for a partner visa). Also onshore permanent visa applicant (exempt parent visa applicants) are eligible to apply for medicare.

Offshore visa applications can be applied while the applicant is offshore and normally the applicant need to be offshore (not in all cases) while DIBP processing the visa and when the visa granted, they can come to Australia.

In the past most of the visa types had an onshore subclass of visa and an onshore subclass of visa, but DIBP decided to simplify Australian visa system and merge those subclass of visas. For example, independent general skill migration had two subclass in the past, subclass 175 for offshore visa applicant and subclass 885 for Onshore visa applicant which then merged together and now both onshore and offshore skill-independent visas are under subclass 189 visa. Most of the same class of onshore and offshore visas merged under one subclass and some still under two different subclasses. For example Partner visa subclasses are still different for offshore and onshore visa applicants. Partner visa offshore subclasses are 309/100 (Temporary/Permanent) and Partner visa Onshore subclasses are 820/801 (Temporary/Permanent).

So, the question might be asked why the above paragraphs presented while the question was about eligibility of TPV or SHEV holders to apply for permanent visas. To answer to that question, I need to mention again that it is correct that IMAs who are currently on bridging visas waiting to be invited to apply for a temporary protection visa or TPV and SHEV holders currently cannot  apply for permanent protection visa. Also it is correct that they cannot apply for any other ‘onshore’ permanent visas unless they meet the requirement of SHEV pathway (Live, work or study in specific regional areas). However, the most important part is they do not have any problem to apply for offshore visas. There is no legislative or policy yet to limit the eligibility of Illegal Maritime arrivals to apply for offshore visas. It means that those IMAs who are on Bridging visas can voluntarily leave Australia and apply for other kind of permanent visas and wait for their visa to get decided and come with the new visa to Australia.

The most important part is those IMAs whose claims of protection has decided and they now TPV or SHEV holders, have an ability to travel overseas subject to condition 8570 which requires them to have a compelling or compassionate reason to go overseas and request for approval of their travel from DIBP. So, If they get approval to travel out of Australia, they can apply for any kind of offshore visa (Their visa application would be valid)  and they can come to Australia with their TPV or SHEV visa and wait for the DIBP to process their offshore visa application while they are in Australia. The only issue is some of the offshore visa applications, such as Offshore partner visa subclass 309/100 require the applicant to be offshore at the time of visa grant. On the other hand, with some other Offshore visa applications at the time of grant, applicant can be onshore or offshore such as General Skill Migration and Employer sponsoring visas.

After a long discussion with DIBP top managers and policy makers, I can now confirm that at the moment (until 16/09/2016) there is no legislation to limit the IMAs who are holder of TPV or SHEV to travel overseas (subject to condition 8570) and apply for offshore permanent visas. If any TPV or SHEV holders currently eligible to apply for any kind of General skilled migration visas (Subclasses 189, 190 and 489) and Employer sponsored visas (ENS 186 or RSMS 187) or any other type of visas which does not require the applicant to be offshore at the time of visa grant, they can apply for those visas and be granted one.

The only issue is with the offshore visa applications which require the applicant to be offshore at the time of grant such as Offshore Partner visa subclass 309/100. Normally if a person apply for a visa offshore for example an offshore partner visa subclass 309/100 and after submitting the partner visa come to Australia with a temporary visa like student visa, the DIBP will process the visa application (which might take one year) and after decided to grant the visa to the applicant, ask the visa applicant to go overseas to be offshore at the time of visa grant and come to Australia with the new visa. As I mentioned before, I had a discussion and raised this issue to the department and I was informed that condition 8570 which limits the ability of the TPV or SHEV holders need a compelling and compassionate reason to allow the TPV or SHEV holder to travel overseas and granting a visa is not acceptable as a reason for the department to allow the TPV or SHEV holders to go overseas. Also I was warned that DIBP with the current government is not happy for IMAs to get a permanent visa (which is ridiculous) and might not inform the applicant to go overseas when the visa is ready to be granted. So, it is very risky to apply for those kind of visas such as Offshore Partner visa subclass 309/100.

Our company has many clients and I personally know many TPV or SHEV holders and they are in a relationship with an Australian citizen/permanent partner and eligible to be granted a permanent partner visa, but the Onshore visa application which is banned and the Offshore visa applications are simply too risky as I explained in the past paragraph.

However, I confirm again that currently there is no issue for  any TPV or SHEV holder who satisfies the criteria for other permanent offshore visas which does not require the applicant to be offshore at the time of visa grant such as General skilled migration visas or Employer sponsored visas.

If you need more information in this matter or any other migration matters please do not hesitate to contact us.

16/09/2016

Amin Farazadaghi

MARN 1463623