If you are an Australian citizen or an Australian permanent resident and have a non-resident spouse or a partner who would like to relocate and join you in Australia, there are a number of factors that may need to be considered.
Making an Application
It is possible to apply for a partner visa either from overseas or from Australia.
An applicant for a partner visa makes applications for both temporary and permanent visas at the same time and place.
If applying from overseas, an application is made for both temporary Subclass 309 (Partner (provisional)) and permanent Subclass 100 (Partner (migrant)) visas.
If applying from inside Australia, an application is made for both temporary Subclass 820 (Partner (provisional)) and permanent Subclass 801 (Partner (migrant)) visas.
Many applicants for partner visas choose to arrive to Australia as tourists and then apply for a subsequent partner visa from inside Australia.
However, to be able to do so, an applicant should include evidence of a genuine continuing relationship and make sure that their current visa does not have any restrictions on making a further application while in Australia. Otherwise, the application will be refused and the applicant will need to leave Australia and make a new application from overseas.
If an applicant successfully applies for a partner visa while in Australia, they will be granted a so-called ‘bridging visa’, which will allow them to remain in Australia until a decision on the partner visa application is made.
However, it is important to note that an applicant for a partner visa must physically be in the correct location both at the time of visa application and at the time of visa grant.
Hence if an applicant has applied for Subclass 309/100 visas, the applicant must be outside Australia both at the time of the application and at the time of the Subclass 309 visa grant. Similarly, if the application is made for Subclass 820/801 visas, the applicant must be in Australia both at the time of visa application and at the time of Subclass 820 visa grant.
Although an applicant for a partner visa makes two applications (for both temporary and permanent visas) at the same time, processing of those applications follow two stages.
At the first stage, the Department of Immigration and Border Protection of Australia (DIBP) processes temporary partner visa applications.
The second stage (processing of the permanent visa application) does not commence until two years since the date of visa application has passed, provided, however, that the applicant remains in the relationship with the sponsoring Australian partner (or spouse).
To be eligible for a partner visa to Australia, an applicant must meet the following major criteria:
be a de facto partner or a spouse of an Australian citizen or permanent resident or intend to legally marry an Australian citizen or permanent resident before the visa grant; meet a genuineness of relationship criterion, and be sponsored by an Australian partner (spouse).
A sponsoring partner must be either an Australian citizen, or an Australian permanent resident who usually resides in Australia.
To be eligible for a partner visa, an applicant must be either:
- A de facto partner of an Australian citizen or permanent resident. It requires the applicant to show at least 12 months of a de facto relationship with the Australian partner. It is possible to waive that requirement if the relationship is registered as a de facto relationship under a law of a State or Territory of Australia; or
- Legally married to an Australian citizen or permanent resident; or
- Intend to marry an Australian partner. In this case, however, the applicant must be overseas and provide sufficient evidence to show that the couple has made adequate arrangements to get married before the visa grant.
Genuine and Continuing Relationship
All partner visa applicants must satisfy the DIBP that their relationship with the Australian citizen or permanent resident is genuine and continuing. This is one of the major criteria for all partner visa applications.
An applicant’s failure to satisfy that criteria will result in visa grant refusal. It is important to note that many partner visas are refused based on the applicant’s failure to provide sufficient evidence to support a genuine relationship with an Australian partner.
Therefore, an applicant must be ready to provide the DIBP with sufficient evidence to support the claims that the relationship with their partner is genuine and continuing.
Normally, the applicant is required to provide the evidence covering the following four categories:
- Financial aspects of relationship – The evidence provided may include: evidence of any joint ownership of major assets and any joint liabilities; evidence of sharing of finances and expenses; joint bank accounts etc;
- The nature of the household –The applicant should be able to demonstrate how they intent to share household duties and provide evidence of living together. Although an applicant is not required to live together for the whole period of the relationship, the applicant is expected to provide evidence that they have not been living separately and apart on a permanent basis and maintained contact whilst apart;
- Social aspects of the relationship – The evidence provided should demonstrate that they are socially recognized as a couple; and
- The nature of the commitment – It is rather difficult to evidence an applicant’s commitment through documents. Therefore, the officers of the DIBP generally consider all documents provided, which include: personal statements, statements from their family and friends, the periods of their separation and reasons for that as well as any mutual wills and the extent to which their affairs are combined, etc.
The evidence which is provided may fall into a number of the above categories at the same time.
Generally, the DIBP considers all circumstances of the relationship and takes into consideration all evidence that is provided as a whole.
However, we recommend our clients to provide the DIBP with sufficient explanation and guidance with respect to the submitted evidence, in particular, which fact or circumstance of the relationship it supports.
We will be pleased to assist your spouse, intended spouse or your partner to prepare an application for a partner visa and lodge that application with the DIBP.
Our experienced immigration lawyers Sydney at Pavuk Legal can also provide you with extensive advice on other matters, including acquiring of your family home, making a will or any other legal matters.
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