Your husband may qualify for Australian Permanent Residence (PR) if you are an Australian citizen or permanent resident, or eligible New Zealand citizen. Provided your husband is eligible, he may apply for a partner visa either in Australia or from offshore. Obtaining PR under the partner visa programme comprises a two-stage process, whereby an initial application is made for a temporary visa. Once 2 years have passed since lodgement of your husband’s initial application, he will be assessed for the permanent residence visa.
Your husband may be able to reside in Australia during the visa processing period, but this will depend on whether he applies as an onshore or offshore applicant. If he applies for a partner visa in Australia, he will be granted a Bridging Visa, which will allow him to remain onshore whilst he awaits a decision on the temporary Partner (Subclass 820) Visa application (a Bridging Visa will come into effect only in certain circumstances, the most common being when your husband’s existing visa expires). Once the temporary visa is granted, he may continue to live in Australia whilst processing of the final PR component of his application takes place. If successful, he will be granted a Partner (Subclass 801) visa.
If your husband applies for an onshore partner visa and he does not hold a substantive visa at time of lodgement, he will need to meet additional criteria as set out in Schedule 3 of the Migration Regulations (a substantive visa is any visa excluding a bridging visa, criminal justice or enforcement visa).
For an offshore application, the process is different in that your husband will need to wait for the temporary Partner (Subclass 309) Visa to be granted before he can enter Australia (unless he applies for another visa, such as a Visitor Visa, to enter Australia in the intervening period. In this scenario, he would still need to be located offshore for the partner visa to be granted). Upon grant of the subclass 309 visa, he will be free to temporarily reside in Australia as he awaits a decision on the permanent Partner (Subclass 100) Visa application.
In both cases of onshore and offshore lodgement, the grant of a temporary partner visa will mean that your husband may live in Australia as a temporary resident, have access to Medicare, Australia’s public health care system, as well as work and study in Australia. He can also enter and depart Australia as many times as he likes during this period. Additionally, your husband will be eligible for up to 510 hours of free English language classes (Adult Migrant English Program).
In terms of the application itself, there are a number of requirements that your husband, as the visa applicant, will need to satisfy to qualify for visa grant. A central criterion in this regard is whether your married relationship is in accordance with its meaning under the migration provisions.
A question which is often asked is:
We are married, we have a marriage certificate and we had an official ceremony conducted. Is this not enough evidence to prove that we are married?
No, not for a partner visa to meet visa grant requirements. A marriage which is recognised as being legally valid in Australia is only one criterion which needs to be satisfied for this purpose. You must also demonstrate that you and your husband have a mutual commitment to a shared life as a married couple, to the exclusion of all others, that your relationship is genuine and continuing, and that you are not living separately and apart on a permanent basis.
The Department will assess whether your relationship meets the above by considering four key factors, namely, the financial and social aspects of your relationship, your household and your commitment to one another.
All the circumstances of your relationship will be examined and will guide the Department in determining the weight to be given to each of these four factors. In general, it is expected that a typical married relationship in Australia today is characterised by the following:
- joint ownership of real estate and other major assets, and joint responsibility for financial liabilities;
- a shared household and domestic responsibilities as well as for the care and support of children (as applicable);
- the relationship being known to third parties; and
- an intention of the couple to be in a committed, long-term and exclusive married relationship.
This means that, in general, an application which is presented with strong supporting evidence covering all four aspects is more likely to be a relatively straight-forward one with less chances of being refused.
Having said that, the Department is not required to strictly apply these four aspects in deciding whether your married relationship is in accordance with the migration provisions. Immigration recognises the individuality and uniqueness of each relationship and that there is no one-size-fits-all approach. There is therefore a degree of flexibility in the way in which they are applied, provided that applicants supply appropriate supporting evidence and explanations to account for the absence of any one or more of these relationship aspects. The evidence that you and your husband provide is therefore crucial in this regard. Please refer to our detailed guide on the evidentiary requirements for a partner visa application, which you can use to help prepare your own application and to ensure that you cover off on all relevant aspects, as required.
Be mindful that your application will likely face a greater level and enquiry and scrutiny by the Department (and therefore a greater chance of a visa refusal) if there is less (or no) clear evidence that your married relationship is in line with the relationship aspects discussed above. Where Immigration has doubts about the genuineness of your married relationship, it can also request that you take part in an interview with a Departmental officer.
The key point to remember is that evidence is key when it comes to applying for an Australian partner visa and to maximising your chances of achieving a successful result. And when the circumstances of your relationship do not fully support or exhibit the characteristics referred to above, provide clear and detailed explanations with appropriate supporting documentation to address this. Failing to do so can result in an automatic refusal of your application.
As your husband’s sponsor, you will also need to apply for, and be granted, approval to sponsor him for the visa as part of this process. It is important to be aware that new requirements which will affect the sponsorship requirements are in the pipeline (although no implementation date has yet been set for these changes to take effect, this could happen at any time going forward). As a result of these changes, the sponsorship will be assessed as a separate process to the visa application and will require approval before the visa can be applied for. This is a significant change to how the programme currently operates, under which both the sponsorship and visa applications can be lodged and approved at the same time. After the changes are implemented, applicants will no longer be able to control the application date of a partner visa application (as they will need to wait until the sponsorship is approved). Complications can arise for onshore partner visa applicants who are in Australia and whose current visa is due to expire soon. The question that arises is what happens if the Department takes longer to decide the sponsorship application and, during this period, your husband’s visa term runs out? In this scenario, he would need to apply for, and be granted, another visa to remain in Australia, or, depart the country and apply for the partner visa offshore. Given the significant implications of these changes, we recommend that all potential partner visa applicants consider applying as soon as possible (provided all relevant eligibility requirements are met). We can provide you with further information and advice in this regard, to ensure that you take this process forward in a way that works best for you.
Before we continue our discussion, be mindful that there are further requirements that apply to partner visas, apart from the key criteria explained above. These include health and character requirements, as well as more specific criteria that apply only in certain circumstances. It is very important, therefore, to ensure that you obtain as much information and advice as possible, which is tailored to your specific circumstances before you and your husband apply for a partner visa. The rules are complex, and information is key when it comes to maximising your chances of the visa being granted.
As mentioned, being informed about the latest and most comprehensive information in regard to the provisions governing the lodgement and grant of partner visa applications will give you and your husband the best chance of achieving a positive outcome on your application. To help you make this happen, we have prepared a series of detailed information guides which explain further the important aspects that apply to partner visa applications what you and your husband should be aware of when embarking on this process.
To help you to anticipate any potential issues that may arise with your own application and tackle them head-on (and thereby help to avoid your application being refused), please refer to our guides on the top reasons for partner visa applications being refused, what Departmental case officers look for when deciding partner visa applications and why partner visa applications are so tough.
We also recommend that you refer to our information guide which provides an overview of the partner visa and a further detailed guide for married couples. You can also complete our partner visa assessment tool to help you to assess whether your relationship is up to immigration standards.
Please be aware that the above information applies in the same way if you would like to get Australian PR if your husband is Australian. Your respective genders are not relevant for partner visa application purposes. Same-sex marriages may also qualify for a partner visa.
The information contained in our guide on how to bring your wife to Australia on a genuine partner visa, which compares partner visas and explores visa requirements, applies equally to your husband. This guide also contains some useful information about what the Department considers to be a legally valid marriage in Australia, which becomes relevant for couples who marry overseas.
When you are ready to apply for a partner visa, what is the process?
Both the visa (Form 47SP) and sponsorship (Form 40SP) applications are to be lodged online through the Department’s website at ImmiAccount (except in limited circumstances where the Department has authorised lodgement of a paper application). Although a sponsorship application is not a legislative requirement for lodgement of a valid application, it is required by Immigration policy.
You and your husband must provide all required supporting documents by attaching them to the online application. Immigration will correspond with you in relation to your application through ImmiAccount, and you can also use the portal to prepare and submit any relevant forms (e.g. to update about a change in your circumstances, or to notify the details of a new passport).
The online portal is also used by the Department to correspond with you in relation to your application. If you engage a professional, they will prepare your application using their organisation’s online account with the Department.
The base application processing charge is currently set at $7,160 for the main applicant, however this may differ in certain circumstances. Charges also apply to accompanying eligible family members (such as a child), with the amount payable being dependent on their age. As a guide, for most applicants the fee will be $3,585 for additional applicants aged 18 or over and $1,795 for those aged under 18. Your husband’s personal situation will determine the amount that is payable. All such charges are payable at time of lodgement of the application and payment surcharges may apply. Also be aware that all fees are subject to change and you should check the current rate which applies to you before you lodge your application.
You and your husband should also be prepared to incur other related costs in connection with your partner visa application, such as:
- health examinations (and additional medical fees where issues are identified);
- police clearances;
- translating documents where they are not in English; and
- professional fees for an immigration lawyer or migration agent (if applicable).
How long will the process take?
It is important to be aware that the partner visa application and grant process is not a quick one in most cases. You should be prepared for a long wait time to decision. As a guide, based on current Departmental processing times, the overall process can take on average between 43 and 56 months for the onshore application, and between 39 and 51 months for the offshore application to be finalised (these processing times are approximate and do change periodically). This data applies to 75-90% of applications submitted.
Australia’s migrations laws are complex, and each case is different. There are also several terms which are defined in the migration provisions (and whose meanings may differ from their ordinary usage). We recommend that you seek professional advice if your wife is seeking to apply for a partner visa, as being fully informed will give you the best chance of achieving a successful resolution to your case. A migration professional can help you to do this.
For up to date advice on the partner visa application process and eligibility requirements, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.