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Australian Partner visa requirements. Self-evident?

 

No, you have to really show you're together for the duration.

30 August 2015. Samantha Fitzsimons, immigration lawyer

On the face of it, Partner visas, whether applied for onshore or offshore seem relatively straight forward. Boy meets girl. Boy meets boy. Girl meets girl. They fall in love, commit to each other and then prepare and lodge their application with the Department of Immigration for the non-Australian partner to join their Australian partner.  Simple. Or so it seems.

However, there are many pitfalls that can plague even what appears to be the most straightforward application.  Partner visa applications, like relationships, can be far from simple.  Joyous, exciting, exhilarating, but also stressful and very often time-consuming.

Many people are not aware that at the time you lodge an application for a Partner visa - whether it be onshore (subclass 820/801) or offshore (subclass 309/100) - you are actually lodging an application for two visas simultaneously: a temporary visa application and a permanent visa application.  The requirements to be met by applicants and sponsors alike are different at each stage, and the processing that occurs by the Department differs between the temporary and permanent stages.  So do the time frames for processing.

In migration terms, Australian law is the same in terms of determining how genuine a relationship is - regardless of whether the couple be married, gay, straight or defacto. But there are many subtle yet extremely important issues that need to be considered before a couple can even determine whether the applicant is eligible to apply for a Partner visa.  Partner visa applications in practice are not so simple as they may seem on the surface.  Just like relationships.

Many couples early in their relationship don’t give any thought to the fact that one day they may have to prove that they are in fact a couple committed to each other in a genuine relationship and so they do not keep the type of evidence of their relationship that needs to be included in a Partner visa application.  To do so early on in a relationship may seem to be calculating.

The Department is looking for evidence that the relationship between the sponsor and applicant is genuine and continuing; if a defacto relationship typically they want to see evidence that the couple have cohabited* for at least 12 months. Married couples have to demonstrate the ‘lawfulness’ of the union in the country in which they were wed. You may also be eligible if you have registered your domestic relationship in jurisdictions where this is available.

But providing enough and the right type evidence of the relationship can often be the least of a couple’s problems in applying for a Partner visa.

There are issues to consider such as the visa status of an onshore applicant at the time the application is lodged and the immigration history of the applicant. Has the visa applicant ever provided any information or documents to the Department that may have an adverse affect on the Partner visa application? There are also previous relationships to be considered, especially from the Australian sponsor’s point of view.  Australian sponsors often do not stop and think about the legal obligations they are undertaking when sponsoring their partner for migration to Australia.  But these issues are just as important as those affecting the visa applicant.

Departmental visa application fees for Partner visas have increased substantially in the past 18 months or so.  An onshore application for a Partner visa is now just shy of $7,000.  That is the fee for the primary applicant alone.  That doesn’t include dependent applicants such as children.  Therefore you really want to make sure you get the application right before it is lodged with the Department of Immigration.  If the application is refused, you say goodbye to your 7,000-odd dollars.  Migrating to Australia with your partner may be one of the most important decisions in your life.  You really do want to make sure that your application is as good as it can be.

*Note that there was a recent case that successfully challenged the cohabitation requirement. See  SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69

Thinking about sponsoring your life partner? Or do you want to demonstrate your permanent commitment to your Australian partner? Call us for a 15-minute discussion to consider your next steps.

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