More information on partner visas

Criteria for Spouse or Partner Visa Application

Criteria for Spouse or Partner Visa Application

Processes for applying for the Australian Spouse Visa

Depending on the Australian Visa you hold, you may be in or outside of Australia when you apply for a spouse visa for Australia. Deciding where and when to apply can be a complex decision so contact us for advice on ensuring your best chance for obtaining your spouse visa.

Once your application for the spouse visa to Australia is granted, you will receive a 2 year temporary Australian spouse visa will allow you to live and work in Australia for 2 years. You will also have access to the Australian Medicare Health System. Importantly, the 2 years commences from the date you apply for the visa, not the date it is granted.In some circumstances, it is not necessary to wait the two-year period before applying for permanent residence.

Criteria

Permanent Residence on the Spouse Visa to Australia

If your relationship is still continuing after the two-year period on your temporary partner visa, you will be entitled to be granted permanent residence of Australia.

In some circumstances, you may be eligible to go directly to permanent residence without remaining in Australia on the temporary spouse visa and may also be eligible for permanent residence even if your spouse or de facto relationship has broken up before the end of the two-year period.

Manning Lawyers – Australian Spouse Visa Application

Spouse Visas- Sponsored Temporary to Permanent Residency under the Family Migration Stream

Generally

The Department of Immigration & Border Protection will test your application very rigorously. Spouse applications are one of the most abused visas for people that would not otherwise be able to get a visa to come to or remain in Australia.

Simply lodging an application is not enough. You must support your application with as much evidence of your relationship as possible: The more evidence the greater your chances of success.

2-year Temporary Visa to Permanent Residence

Sponsorship

In all of the applications discussed in this article, your partner acts as your sponsor for the visa application.

There are some limitations on sponsors who have previously sponsored a partner.

Option 1 – Prospective Marriage Visa – You intend to get married! (Subclass 300)

If you and your partner intend to get married then it is possible to apply for a ‘prospective marriage visa’, also known as a ‘fiancé visa’.

This is an ‘offshore’ visa application. That means the person applying for the visa (the non-Australian) must be outside of Australia at the time the application is made and the decision is made.

If successful, you will be given a visa for nine months to come to Australia to marry your sponsor.

As long as you have met and can prove it and genuinely intend to get married you should be able to satisfy the criteria for this visa.

‘Met’ usually means face to face. However, it is possible, though more difficult, to apply if you have only met on the internet. This visa provides for culturally arranged marriages also.

Option 2.1 – Spouse Visa – You get married!

The day you get married to your partner in a ceremony that is recognised as legal in the country where the marriage takes place then, Australian immigration allows you to apply for a visa on the basis of this marriage.

For example, you get married in a civil ceremony in the United Kingdom, this would be recognised. However, if you are looking into some alternative marriage options, e.g. a religious Buddhist ceremony in Bali, without also then engaging in a recognised civil ceremony, it may not be recognised in Australia.

It is the act of marrying that establishes the right to apply but you still need to prove that the relationship is genuine.

Option 2.2 – Spouse Visa – You have been living in a De facto relationship for ’12 months’

As an example, you landed in Australia holding a working holiday visa, went off and did 3 months on a farm, got your working holiday visa for another year and have been living with your partner for 12 months.

On the morning of the 366th day of living together (or 1st day of your 2nd year living together) you can apply for a partner visa.

An application made even one day before this date is probably not going to be approved as you cannot satisfy the 12-month living together rule. There are very limited exceptions, but cutting corners on the 12-month risks the application being refused.

If your State permits it you can register your relationship with the Registry of Births Deaths & Marriages.

As an example, you land in Australia, meet your partner the next day and move in together 3 days later. You are so content that you don’t bother going to regional Australia to work to get your working holiday visa extended and just before your first 12 month working holiday visa expires you lodge your spouse application. This application may be refused as you have lived together for 3 days less than 12 months.

Your friend in the pub tells you to lodge an Australian visitor visa application in Australia before your working holiday visa expires and disclose that you are in a relationship with an Australian. This also gets refused as the case officer decides that you are using the visitor visa for the purpose of staying in Australia solely to get married.

To avoid this, you don’t disclose the relationship and get the visitor visa. You then lodge the spouse application and get refused on the basis that you have not disclosed the relationship in your last visa application.

It is, therefore, advisable to get proper legal advice before you pursue any options towards a Partner Visa.

Proving the 12 months

A Lease in joint names, utilities in joint names and all your individual and joint mail addressed to the address on your lease. Support this with lots of photos, (remember photos don’t prove a relationship but the lack of them disproves it) a couple of dogs and cats, some statutory declarations from family and friends and the Department of Immigration & Border Protection will probably be forced to accept that your relationship is genuine and that you have been living together for the required 12 months.

However, it is not always that straightforward, particularly for backpackers, and you may have to get creative with the proof you provide.

Proving Your Relationship is Genuine

People trying to abuse the Australian spouse visa pathway will marry their bogus spouse, present their relationship as loving and genuine and provide evidence to support this.

It is the strength of this evidence that the Department of Immigration & Border Protection case officer will scrutinise in coming to a decision whether your relationship is genuine and therefore your application is a worthy of the grant of the temporary 2 year spouse visa.

That officer will consider a range of elements when considering your partner visa application and look at things like the financial aspects of the relationship, nature of the household in which you live, social aspects of your relationship and the nature of your commitment which ultimately must show you share a mutual commitment to a life together as de facto spouses to the exclusion of all others.

If you support your application with enough persuasive evidence to satisfy the criteria for the grant of a partner visa, then the case officer is left with no discretion to refuse your application and must grant the visa.

Therefore, a well prepared, well supported and complete application is a key to a successful visa outcome.

Option 2.3 – Same Sex Couples, male and female – the 12 month living together rule again!

Applications for same sex partners are based on identical criteria as the de facto partner visa set out above.

The genuineness of your relationship will be scrutinised in very much the same way as all other relationships will be where a partner visa application has been lodged with the Department of Immigration & Border Protection.

Option 3 – Unlawful spouse applications – you have overstayed your visa, are in love and don’t want to leave!!

Let’s face it, it happens! People fall in love, can’t possible bear the thought of separating from their soul mate and make the decision to risk it all for love, overstay their visa and disappear into the community to build their life and family with their partner in Australia.

There may be an option to make a valid onshore spouse visa application for the grant of a visa to give you lawful residence in Australia and allow you to stay with your partner. Ray Turner has had many years’ experience assisting people in this sort of situation.

Within 28 days of expiry or establish ‘compelling circumstances’

If your visa expired less than 28 days ago, then you are still eligible to apply as long as you do so within 28 days of the date of expiry of your visa.

If you are outside of this period, then you would need to establish compelling circumstances to be successful in applying for a spouse visa without a valid substantive visa.

Department of Immigration & Border Protection policy provides that ‘compelling circumstances’ can be established where –

The law in this area is very complex and I strongly recommend that you contact us for legal advice before you consider lodging an Australian spouse visa application in circumstances where you don’t hold a valid visa permitting you to be in Australia lawfully.

Conclusion

People in loving relationships seem to find it hard to believe that anybody could possibly doubt the genuineness of their love and commitment to each other. That is until they make an application to the Department of Immigration & Border Protection for an Australian partner visa.
Do not take this application lightly and think it is going to be as easy as holding hands, staring into each other’s eyes and smiling while the Department of Immigration & Border Protection case officer warmly touches you on the shoulder while handing you your permanent residency.
This is not the time to cut costs as in most cases; you will only get one chance at making a successful partner visa application and it is important to remember, it is you and your partners future at stake so taking proper legal advice is highly recommended.

All applicants for an Australian partner visa should at least take an initial consultation with a specialist Australian immigration lawyer, such as Ray Turner, to understand the strategies available to them and the strengths and weaknesses of their own specific circumstances. This will ensure that when the application is lodged it is given the strongest possible chances of success.

This article should not be taken as legal advice and cannot be relied upon as a complete or accurate representation of the law. It is meant to be indicative only and a general informative guide to the visa application. While the author has made all reasonable attempts to ensure it is accurate at the time of writing, visa applicants should take independent legal advice before lodging any Australian visa application with the Department of Immigration & Border Protection.