Understanding the Partner Visa | IMMIGRATION LAWYERS IN MELBOURNE

There are several laws and visas applicable to the spouse or partner depending on the circumstances, like the nature of your (past and present) relationship [De jure [married] or De facto [not married] relationship], your current visa (if you have one), whether you are onshore or offshore and the status of your Australian sponsor. Based on the circumstances you may get a temporary Partner/spouse visa or a permanent Partner (Residence) visa. You need to apply the correct visa that is most suitable for you [e.g.: Prospective Marriage visa if that visa is more beneficial] if not your visa may be refused, and the huge visa fee may not be refunded and other prohibitions.

The visa subclasses for partner/spouse are:

Temporary Partner Visa (Subclass 820)

Regulations, which deals with the UK-820 visa – that is:

• Regulations Schedule 1 item 1214C
• Regulations Schedule2 Part 820

Permanent Visa (subclass 801)

The Regulations which deal with the BS-801 visa are:

• Regulations Schedule 1 1124B
• Regulations Schedule 2 Part 801

Partner (Provisional) Visa (Subclass 309)

The Regulations, which deal with the UF-309 Partner (Provisional) visa are:

• Regulations Schedule 1 item 1220A
• Regulations Schedule 2 Part 309

Permanent Visa (Subclass 100)

To be granted a visa 100, the applicant must have been granted a visa 309 (which can only be applied for and granted outside Australia). The only exception is certain pre-1 November 1999 applicants whose visa 309 ceased because the travel component of the visa expired.

Prospective Marriage Visa (Subclass 300)

This visa is for persons seeking entry to Australia:

• to marry, after their first entry to Australia, the Australian citizen, Australian permanent resident or eligible New Zealand citizen who is their prospective spouse (either party is also called ‘fiancé(e)’) and

• with a view to remaining permanently.

A TO-300 visa allows the holder to travel to, enter and remain in Australia for 9 months. Policy intends that, after marrying their prospective spouse (and while the TO-300 visa is still in effect), the TO-300 visa holder apply for a UK-820/BS-801 Partner visa.

You may be eligible for a partner category visa if you are:

• Spouse of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, or

• Fiancé of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, or

• De facto partner (including same-sex relationships) with an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

Relevant regulatory criterion

• s5F of the Act – definition of spouse

• 1.15A – factors for assessing spouse relationships

• s5CB of the Act – definition of de facto partner and de facto relationship

• 1.09A – factors for assessing de facto relationships

• 2.03A – age and length of relationship requirements for de facto relationships.

De jure relationships

s5F of the Act defines spouse as married (that is, de jure) relationships only. In this and related policy instructions, therefore, references to a spouse (or spouse relationship) are limited to meaning married relationships.

Among other matters, laws and policy provides procedure on the recognition (if any) under migration law of:

• proxy, customary and arranged marriages

• marriages where the person whom the visa applicant has married (or will marry) is – in terms of the Marriage Act 1961 – usually domiciled in Australia

• polygamous marriages

• under-age marriages, that is, where either party is not of Australian marriageable age (at least 18 years old)

• marriages within a prohibited degree of relationship

• same-sex marriages

• marriages involving transsexuals.

In addition, there are factors in reg. 1.15A that must be taken into account when assessing the marital relationship – for policy and procedure: reg1.15A.

De facto relationships

De facto partner is defined in s5CB of the Act and includes both same-sex and opposite-sex de facto couples. Among other matters, regulations and policy provides recognition (if any) under migration law of same-sex de facto relationships.

In addition, there are factors in regulation 1.09A that must be taken into account when assessing the de facto relationship – for policy and regulation on these factors: Div1.2/reg1.09A.

Further, regulation 2.03A prescribes an age requirement for de facto partners (both applicant and their Australian partner must have turned 18) – see reg2.03A.

Visa Criteria

In order to be eligible for a partner visa, you must meet the following criteria:

Genuine Relationship

You will need to show that you and your partner have a commitment to a shared life together, to the exclusion of all others. You and your partner must live together, or at least not live apart on a permanent basis.

The Department of Immigration will look at a number of aspects of your relationship, including:

• Cohabitation: Usually evidenced through showing correspondence addressed to both of you at the same address

• Financial Interdependence: For example, joint bank accounts, joint ownership of property, joint financial commitment such as leases, mortgages, insurance policies.

• Social aspects of the relationship: Joint travel, joint social activities, joint participation in cultural or sporting activities.

Defacto Relationship – 12 Months Cohabitation

A defacto relationship would require evidence that you have lived with your partner for the last 12 months. The Department of Immigration requires documentary evidence that you have lived together (for example, a joint lease or correspondence sent to you at the same address).

It is possible to get a waiver of the 12 month requirement in cases where you are unable to live together due to exceptional circumstances.

If you are married, you do not need to show 12 months of cohabitation, but will need to show that you are currently living together. If you have had your relationship registered in an Australian state or territory, you would be similarly exempt from the 12-month cohabitation requirement.

Health & Character

You will need to provide full health and police checks. If you do have a medical condition, a waiver of the usual health requirements is possible where the cost to the Australian community of treating the condition is not undue.

Have more specific questions about your visa? Get in touch with the best Immigration Lawyers in Melbourne.