If you are married to, or are in a de facto relationship with, an Australian citizen or permanent resident, or an eligible New Zealand citizen, you may be eligible for a Partner Visa. Although at first glance, a partner visa application may seem simple enough, the reality is this is most often not the case.
Many sponsors (most commonly Australian citizen sponsors) are very surprised to find out that obtaining a permanent Australian visa is a far more difficult task than they imagined. Sponsors frequently are shocked to find out how adversarial the Department of Home Affairs is and how much evidence is required in determining partner visa applications for their spouses and de facto partners. They often think ‘why is the Department giving us such a hard time; can’t they see we are genuine?’
Why The Partner Visa Program is So Tough
What is not commonly publicised is the extent to which people seek to exploit Australia’s immigration laws to obtain visas unlawfully. One of the most exploited visa programs is the partner visa program. This is because it is rather difficult for a case officer to truly assess whether a relationship is genuine or not – after all, it is a very subjective thing. So the Department has developed tools to assist them in making a determination about a relationship, that is, what kind of evidence is sufficient to make a decision about a relationship. But historically people have learnt what the Department looks for in deciding whether to grant a partner visa, and have constructed their circumstances and evidence to give the appearance of genuineness.
In recent years, the Department has applied a higher level of scrutiny to partner visas, such as, for example when it announced that it had arrested and charged a number of individuals over fraudulent partner visa applications. It is highly likely that this will become a more common occurrence as the Department continues to ‘crack down’ on what they see as a prevalence of bogus relationships to secure visas. We have witnessed an increase in scrutiny of partner visas over the last few years, and the refusal rate of self lodged applicants seems to be growing.
The Government has in recent years announced some radical changes to the partner visa rules. These are yet to enacted however, if they are, this will cause a great deal of difficulty and hardship for Australians and their partners who are looking to apply for a partner visa.
What Is The Government Seeking To Change?
The proposed changes include the following.
Refuse Sponsorship Where Serious Offences Are Detected
First, the Government wants to crack down on Australian sponsors who have criminal records, thereby denying them the opportunity to sponsor their partners for a visa in Australia. Any sponsor with a domestic violence or sexual crimes history will almost certainly be barred from lodging a partner visa application. Others with violent crime histories will also face serious difficulties. In the future, we may see other criminal records being prevented from sponsorship. Remember, we now routinely see citizenship and visa applications refused for traffic offences, which would have been unheard of 5-10 years ago.
But the biggest impact on the whole program won’t be on those with criminal records, it will be on those sponsors who have no record at all. Otherwise perfectly law abiding good sponsors in genuine relationships will suffer hardship. How?
Separate Sponsorship Assessment From The Visa Application Process
The Government wants to make the sponsorship approval process a prerequisite for lodging a partner visa. So the spouse or de facto partner of an Australian would be prevented from lodging a partner visa until their sponsorship application is approved. This approval process will initially be deceptively simple. Partner visa sponsor application form, some identity documents, and… a police clearance. If the sponsor has lived outside of Australia, they may need an overseas clearance as well. Australian Federal Police clearances take on average around 1-2 weeks to process. No big deal, I hear you say. Overseas clearances? They can take months in many countries, if they arrive at all. So what happens if the sponsor can’t get their clearance in time? Their partner would need to leave Australia and apply from overseas (unless there is another visa they could apply for in Australia – this is most often not the case). Offshore processing times for partners are currently anywhere from 16 months to 22 months, perhaps longer if an appeal process is required. Unnecessary hardship for otherwise good Australian sponsors and their partners who just want to get on with their lives.
All this disruption and hardship is caused by the noble pursuit of locking out bad sponsors. But they are very much the exception to the rule – a very small percentage of sponsors deserve being locked out of the partner visa program.
Also, it will be a slippery slope – in the initial phase only a police clearance will be required and only truly serious offences will cause a refusal of a sponsorship. But who knows how sponsorships will be addressed in the future. Currently, there is no income requirement to be a partner visa sponsor (though there may be issues if the sponsor is heavily reliant on government benefits). Could we see an income test for partner visa sponsors? In which case tax returns and income evidence will be required, thus slowing down the process even further?
These changes could be enacted at any time. The message is clear for potential partner visa applicants – plan ahead to avoid disappointment. It is also prudent to begin gathering evidence of your relationship as soon as possible.
Get More Information About The Proposed Changes
We recommend that you refer you to our articles on the Partner Visa Changes and Australia Partner Visa Changes, for a further detailed discussion of the above proposed changes, how they may impact the partner visa application process (including the separation of the partner visa sponsor application), other changes that have since been implemented to the partner visa program and how a registered migration agent can assist you with your partner visa application.
Given the highly complex nature of the migration laws and regulations and the changing environment, this means new rules could be enacted at any time. It is now, therefore, more important than ever to obtain expert advice before you apply for a partner visa. Contact us today to book your consultation.
We are here to make your immigration process as painless as possible. For advice about your eligibility for a partner visa, how the partner visa application process works, an assessment of your eligibility to apply for partner visa, and mapping out timelines and strategy, book a consultation with an experienced migration agent to give yourself the best chance of achieving a successful outcome on your partner visa application.
What Is The Partner Visa Application Process?
To apply for a partner visa, you need to lodge a combined application for a temporary visa and a permanent visa. Although the visa subclasses differ, depending on whether you apply onshore or from outside of Australia, the process is essentially the same in all material respects.
An onshore application requires lodgement of a Subclass 820 (Temporary) Partner Visa, combined with a Subclass 801 (Permanent) Partner Visa.
Applying outside Australia requires you to apply for a Subclass 309 (Temporary) Partner Visa, combined with a Subclass 100 (Permanent) Partner Visa.
You will first be assessed for the temporary visa. If successful, as a Subclass 820 visa holder, you can remain in Australia whilst you await processing of your permanent residence visa.
As a Subclass 309 visa holder, you can enter and remain in Australia whilst you await processing of your permanent residence visa. You need to make your first entry to Australia before the date specified in your visa grant letter. The first entry date is generally set at 12 months from the date of visa grant.
As a temporary partner visa holder (subclass 820 or 309), you can work and study in Australia. You can also travel to and from the country on an unlimited basis. You can also receive free English language classes, and enrol in Australia’s medical benefits system, Medicare.
Two years following grant of the temporary visa (Subclass 820 or 309), you will be assessed for the permanent visa (Subclass 801 or 100).
This two-year wait period does not apply if, at the time the visa application is made, you are in a long-term partner relationship. In this case, you will be granted the permanent residence visa immediately.
A long-term partner relationship means a relationship (as a spouse or de facto partner relationship) that has continued for:
- at least 2 years if there is a dependent child (other than a step-child) of both the applicant and sponsor; or
- at least 3 years in any other case.
Prospective Marriage (Temporary) Visa
If you intend to marry an Australian citizen or permanent resident, or an eligible New Zealand citizen, you may be eligible for a Subclass 300 Prospective Marriage Visa. Be mindful that to apply for this visa, you would also need to follow the above 2-step process, however this would only occur after you first apply for a Subclass 300 Visa. If granted, the prospective marriage visa will allow you to enter Australia as a temporary visa holder, marry your partner, and apply for the onshore Partner Visa within the relevant visa period (between 9 and 15 months).
Now that you have an outline of the partner visa application process and what it involves, the most important step in applying for a partner or prospective marriage visa is at the start, that is, you need to assess whether you qualify for the relevant visa. Only then can you procced to apply.
It is critical that you have a complete and up-to-date understanding of the eligibility requirements that apply. Key aspects are the relationship, sponsor and age requirements. Other criteria will also need to be met, including health and character. You also need to understand defined terms in the laws and regulations. For example, the definition of a de facto relationship may not be based on its common usage. You need to meet strictly defined requirements for partner visa purposes. The same applies to married relationships. A marriage certificate alone is not sufficient to evidence the existence of a spouse relationship when applying for a partner visa.
We would therefore highly recommend that you speak to a professional to obtain advice on your options. Even if you do not follow through with having a professional prepare and lodge the application for you on your behalf, at least having a conversation with a migration expert before you start the process will equip you with the information you need before proceeding with your application. Remember, migration law is one of the the most complex parts of Australia’s legal system. The average person without the experience, skills and qualifications may be fine with researching the visa application process online, but this will only provide you with a very basic understanding of how the process works. There is a lot of detail under the surface that many people are not aware of, including immigration policy for example. This is an important information source but it is not widely available. A phrase we often use is ‘you don’t know what you don’t know.’ This describes migration law perfectly.
Who Can Help With Your Partner Visa Application?
Applying for a partner visa can often be one of the most complex types of visas in Australia. It is vital that you have a complete and up-to-date understanding of the migration provisions as they apply to your particular situation, and how to demonstrate to the Department that you meet each applicable requirement. This can be more challenging for a partner visa as every relationship is different. There is no ‘one size fits all’ relationship, which, from the Department’s point of view, is entirely acceptable, even expected, and even more so when you consider that different countries, cultures, religions and the like each adopt their own traditions and accepted standards for relationships. There can also be changes to living arrangements of a married due to work commitments, for example. Arranged marriages are another common feature of many cultures, and therefore may not necessarily follow the same path as a more conventional-type relationship often seen in western cultures. Although these types of variations may depart somewhat from the standard vanilla-type relationship normally seen in Australia more generally, this does not mean they would not be accepted as meeting the partner visa requirements.
The key aspect in maximising your chances of being granted a partner visa is to provide detailed, comprehensive documentary evidence as part of your partner visa application, to show to the Department how you meet the requirements. And if particular circumstances apply, explain them. The worst thing you could do is simply ignore a requirement because it doesn’t ‘fit with your relationship.’ Doing so means you risk having your application be refused.
It is also important to be mindful that careful planning is required. Although it is always the case that you need to have a good understanding of the laws and regulations, you also need to anticipate any potential changes that could be coming.
The team of professionals at PAX Migration Australia have the knowledge, skills and qualifications to advise you on your options, and formulate a partner visa pathway to help you to achieve your migration goals in Australia.
As part of the service, your registered migration agent will provide you with tailored advice that is prepared specifically for you, based on your individual situation, your goals and needs. Contact PAX Migration Australia to explore your options for a partner visa today, and avoid being caught out by changes that could be implemented at any time.
Why Choose PAX Migration Australia?
To learn more about why you should consider speaking with PAX Migration Australia, reviews and testimonials from our clients about what they think about us, and why obtaining professional assistance and advice from a migration agent can be beneficial in achieving a positive outcome on your migration matter, please refer to the following articles:
For more information on what you can expect from PAX Migration Australia when you engage our services, including the process involved, please refer to the following articles:
Get More Information About The Partner And Prospective Marriage Visa
We have prepared a series of articles to provide further information about the partner and prospective marriage visa program and how it operates, including the partner visa application process and eligibility requirements. Please see the links below for more information.
* * * * * * * * * * * *
In conclusion, given the highly complex nature of the migration laws, and the fact that every individual case is different, we strongly recommend that you book a consultation with an experienced migration agent, so that you are fully informed about the requirements that apply to the partner visa stream to ensure that you have the best chance of having a successful outcome.
We note that the above discussion provides an overview of some of the key issues to be aware of if you are considering applying for a visa in the partner stream. Australia’s migration laws are complex, and each case is different. We have also referred to 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 before you proceed with applying for any visa class, as being fully informed about the process and requirements that apply will give you the best chance of achieving a successful outcome on your application, and thus lessen the chance that it will be refused. A migration professional can help you to do this.
For up to date advice on the prospective marriage and 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.