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Partner Visa - All Questions Answered!




In this blog, we will ANSWER all the MOST COMMON QUESTIONS about the Partner Visa that we have received in the last 10 years.



QUESTIONS



1. What happens if the relationship ends before the visa is granted?


2. Can I skip the Temporary Visa stage and get the Permanent Visa directly?


3. Can I apply if I have been in a relationship for less than 12 months?


4. Can my partner sponsor me if he/she has sponsored someone else before?


5. Can I apply if my partner and I have lived separately for some time?


6. I met my partner online. Do I still qualify for the visa?


7. How long will it take to process my Partner Visa application?


8. Can I include dependent children from my previous marriage on my visa application?


9. Is it easier to get a Partner Visa if I marry or get pregnant?


10. I'm in a same-sex relationship. Does this make my application different?


11. Can I travel overseas without my partner while the visa being processed?


12. I'm separated but not yet divorced. Can I sponsor/be sponsored by someone for a partner visa?


13. Can I apply for a Partner visa if I'm unlawful in Australia?


14. My partner is a lot younger/older than me. Is this a problem?


15. Is the Department going to interview me or visit my home?


16. I've got my visa. What are my rights?


17. I applied as a De Facto. Should I marry before my partner visa is granted?





ANSWERS



1. What happens if the relationship ends before the visa is granted?


Before the visa is granted, a relationship can end for many reasons. The 3 most common reason are:


1. Natural end, when people break up

2. Death of the sponsor

3. Family violence


Let's look at the 3 scenarios one by one:


1. The 1st scenario is when the relationship ENDS NATURALLY (for example, because of a BREAKUP). In this case, the visa will not be granted. Both applicant and sponsor will need to notify the department of the change in circumstances, and the visa applicant will need to apply for another visa to remain in Australia.


2. The 2nd scenario is when the relationship ends because the AUSTRALIAN PARTNER DIES. If the partner dies, the visa will still be granted if the applicant can prove that he or she:


  • Was still the spouse or de facto partner of the sponsor when the sponsor died (if they broke up BEFORE the sponsor died, the visa will not be granted);

  • that the relationship would have continued if it wasn't for the death of the sponsor (if they were about to break up WHEN the sponsor died, the visa will not be granted), and

  • that the visa applicant has developed 'close ties' to Australia. Close ties are personal ties (like close friends), business ties (like starting a business) or cultural ties. As you can see the definition of 'close ties' is actually quite generic, and it will be assessed by the case officer on a case by case basis.


Be aware this rule is only not valid for the temporary OFFSHORE partner visa, the subclass 309, so if you applied for an offshore temporary partner visa and your partner dies, you will not get your visa.


3. The 3rd scenario is when the relationship ends because of FAMILY VIOLENCE. Basically, family violence rules apply in the same way as the death of the sponsor, so the visa will still be granted only if the applicant proves that they were still in a relationship one the violence happened, that the relationship would have continued if it wasn't for the violence, and that the applicant has developed close ties to Australia.


Now, the big question here is.. 'what is family violence'?


The definition of family violence is a 'conduct, whether actual or just threatened, that causes the alleged victim to reasonably fear for or to be reasonably apprehensive about, his or her own wellbeing or safety.


In simple words, if you reasonably fear for your safety because of an act or a threat, that could be family violence. But there is more: the violence does not necessarily need to be done against you, but it can be done against


(b) a member of your family unit; or

(c) a member of your sponsor's family unit;

(d) your property;

(e) the property of a member of your family unit;

(f) the property of a member of your sponsor's family unit


At the end of the day, in case of family violence, if you want to get your visa you need to know HOW TO PROVE family violence.


Now, there are many ways to do that and I will not go into too much detail, but the most effective way is to get a final AVO (ie a FINAL apprehended violence order), because the immigration department will accept a FINAL AVO this is evidence of family violence.




2. Can I skip the Temporary Visa stage and get the Permanent Visa directly?


There are certain situations where you could be granted the permanent partner visa directly, without going through the temporary stage, thereby saving a couple of years of time.


This is only if you can prove that you are in a 'long term relationship'.


You are in a long term relationship if, at the time when you lodge your application:


  1. you have been with your partner for 3 years or more; OR

  2. you have been with your partner for at least 2 years, and there is a dependent child from this relationship


If this is the case, you can ask the department to grant you the permanent visa directly, but bear in mind that the grant is completely at their discretion.




3. Can I apply if I have been in a relationship for less than 12 months?


Yes, you can still apply as long as you officially register your relationship with the relevant Australian authority such as a Registry of Births, Deaths and Marriages.


However, not all Australian states and territories allow you to register your relationship (as at March 2020):


New South Wales (NSW)

"registered relationship"

https://www.bdm.nsw.gov.au/Pages/marriages-relationships/relationship-register.aspx


Victoria

"registered domestic relationship"

https://www.bdm.vic.gov.au/marriages-and-relationships/register-a-domestic-relationship


Queensland (QLD)

"registered relationship"

https://www.qld.gov.au/law/births-deaths-marriages-and-divorces/marriage-weddings-and-civil-partnerships


Australian Capital Territory (The ACT)

"Civil union": https://www.accesscanberra.act.gov.au/app/answers/detail/a_id/1694


South Australia

"registered relationship"

https://www.sa.gov.au/topics/family-and-community/births-deaths-and-marriages/register-a-relationship


Tasmania

"significant relationship"

https://www.justice.tas.gov.au/bdm/significant


Western Australia:

Registration is possible but NOT recognised for migration purposes.


Northern Territory

No relationship registration available




4. Can my partner sponsor me if he/she has sponsored someone else before?


Yes, as a long as more than 5 years have passed from the date when the previous sponsorship was LODGED - not when it was approved!


For example, if the previous sponsorship was lodged on 1 Jan 2015, you partner will be able to sponsor you and you will be able to lodge your visa on 1 JAN 2020, irrespectively of when the previous partner's visa was approved.


If the previous partner visa was withdrawn or refused, there is no 5-year limitation and your sponsor will be able to sponsor you straightaway.




5. Can I apply if my partner and I have lived separately for some time?


Yes you can, but you should to be able to prove that you and your partner have kept communication as a couple during the period of separation.




6. I met my partner online. Do I still qualify for the visa?


Nowadays, many people meet and date online for some time before meeting in person.

The real question is: does time spent in an online relationship count for the partner visa?


The answer is that it counts only if you can prove that, during the period when you were dating online, you and your partner were in a de facto relationship.


The reality is that most people who date online are NOT able to provide all the evidence of a de facto relationship, so my suggestion is not to take into account the period you were dating online as a de facto period, just to be one the safe side.




7. How long will it take to process my Partner Visa application?


Australian visa processing times constantly change depending on the number of applications lodged at any given time, the Australian Government's internal allocation procedures, etc.


In general though, most partner visa applications take around 2 years before they get allocated to a case officer.


You can check the general visa processing times here: https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-processing-times/global-visa-processing-times


These processing times are indicative only and sometimes some applications get processed faster or slower and there is no way to speed the process up.


However, there is something you can do to avoid your application being delayed, which is to make sure that you lodge a 'complete' application, that is, you attach all the documents and information required.


The only documents that some people choose to attach at a later stage are the police checks and the health examinations because they are only valid for 12 months, as they may have expired by the time your application gets allocated to a case officer.




8. Can I include dependent children from my previous marriage on my visa application?


When it comes to visa applications, the Australian government approach is not to break families apart. And this is why you can include your 'dependent children' from a previous relationship in your partner visa application.


So who is a 'dependant' exactly?


In most of the cases, a dependant is your child from a previous relationship who's under 18 years of age.


However, your children over 18 can still be considered your dependents if they rely on you for financial support to meet their basic needs for food, clothing and shelter OR if they can't work because they are mentally or physically incapacitated. Very important: the reliance on you must be VERY HEAVY to the point that, for example, without you your children would not be able to access food or shelter.


Also, If your child is under 18, you will need to obtain consent from your child's other parent for your child to migrate with you. If you have the sole custody of your child, you will need to attach to your application the court order granting you the sole custody.


Change in circumstances


After the application is lodged, your dependents children will need to notify the department if there has been any change in their family unit that could affect their visa application. What does that mean? for example, If your son who was included in you visa application as your 'dependant' gets married before the visa is granted, he will not be considered dependent to you anymore, because he is now dependent to his spouse, and his visa may not be granted.




9. Is it easier to get a Partner Visa if I marry or get pregnant?


Technically, it does not make any difference because what the department looks at is whether or not your relationship meets the requirements for either a married or de facto relationship, and there is no specific provision saying, for example, that if you are married or if you have kids your relationship is considered to be more genuine and continuing.


Having said that, at the end of the day the case officer who will assess your application is a human being which will need to be convinced about your relationship. So in my practical experience, being married, and particularly, being pregnant or having kids together, is a factor that case officers would consider in favour of the existence of a genuine relationship. Every case is different though.




10. I'm in a same-sex relationship. Does this make my application different?


No.


Same-sex relationships have the same recognition of opposite-sex relationship, also in regards to children, to make sure that these children are not disadvantaged only because their family is made by parents of the same sex.




11. Can I travel overseas without my partner while the visa being processed?


Yes you can, but make sure that you and your partner keep contact as a couple during the whole period of separation, because the department may ask you to provide evidence of that communication. Good evidence could be WhatsApp, Skype, Text etc messages covering the whole period of separation.




12. I'm separated but not yet divorced. Can I sponsor/be sponsored by someone for a partner visa?


Yes, if you can convince the case officer that you are 'permanently separated' from your previous partner. The case officer will examine your application more closely, particularly if you only separated recently.


Documents to prove that you are permanently separated could be, for example, evidence that you are paying child support for your children, evidence that the Divorce proceeding is underway, family court orders, etc.


Having said that, my suggestion is always best to wait for the Divorce Certificate to be issued before applying for the visa to be on the safe side.




13. Can I apply for a Partner visa if I'm unlawful in Australia?


As you probably know, It is unlawful to stay in Australia without a valid visa.


The most common scenarios where people become unlawful in Australia is when their visa has expired OR it was cancelled because of a breach of the visa conditions, for example, because the person was on a student visa and did not go to school. In these cases, there are specific rules which apply.


If your last visa was cancelled on 'character grounds', for example, because you committed a serious crime, you cannot apply for an onshore partner visa.


If you are unlawful but your visa was not cancelled on character grounds, you can apply for the partner visa within 28 days from the last day you held a valid visa. Eg. if your visa expired on 1 JAN, you need to apply for the partner visa before the 28 JAN.


ATTENTION HERE: the downside of applying after your visa has expired is your that you will be given a bridging visa C (not a bridging visa A) with no work rights! So for the 2 year processing times you will not be able to work!


If more than 28 days have passed from the last day you held a valid visa, you can still apply but you will have to show something called 'compelling and compassionate' circumstances, which, basically, are much stronger reasons to allow you to stay in Australia. These circumstances must be beyond your control, for example, if you had a serious accident the day before your visa expired that prevented you from renewing your visa on time because you were in hospital


There is no list of compelling circumstances, but based on my experience I found that the following circumstances 'may' be taken into consideration the by department:


  • You and your Australian sponsor are looking after your sponsor's Australian children, if you can prove that the separation will adversely affect the Australian children

  • You provide regular daily health care and household support to your sponsor

  • you suffer severe illness or incapacity and are receiving treatment and support in Australia, so basically you can't leave.

Having said that, in my experience it's very difficult to prove compelling circumstances.




14. My partner is a lot younger/older than me. Is this a problem?


Sometimes the age gap between a couple can be a problem for them because of how society perceives it. But at the end of the day, it’s all about showing your commitment to the other person and how genuine is your relationship.


And you do this through providing enough evidence to meet the 4 MAIN PARTNER VISA CRITERIA:


1. Financial commitment

2. The Nature of Household

3. The Social Context of Your Relationship

4. Your Commitment to Each Other


The Department cannot refuse an application only on the basis that there is a big age gap between you and your partner. It all depends on whether you can show that you are in a genuine and committed relationship.


Now, if the age gap between you and your sponsor is significant (eg. more than 10 or years), and if you come from a country where the standard of living is lower, the department could scrutinise your application more closely because there is a higher risk that your relationship may not be genuine.


If there is a significant age gap between you and your partner, make sure that you put even more effort in preparing your documents.




15. Is the Department going to interview me or visit my home?


In generally no, unless they have reason to believe that your relationship is not genuine.


In practice, this is more common for offshore applications from high-risk countries.


In any case, make sure that you take all the necessary steps to show that your relationship is genuine in case you get a visit or an interview.




16. I've got my visa. What are my rights?


Once you get your TEMPORARY partner visa (either the 820 onshore OR the 309 offshore) you can:


  • live, work and study in Australia until your permanent Partner visa is decided

  • travel to and from Australia as many times as you want

  • attend up to 510 hours of free English language classes provided by the Adult Migrant English Program

  • enrol in Medicare, which is Australia’s public health care scheme



Once you get your PERMANENT partner visa instead, usually two years after you Temporary visa is lodged, you can:


  • live, work and study in Australia indefinitely

  • enrol in Medicare

  • SPONSOR your parents to come to Australia

  • travel to and from Australia for 5 years (the PR visa is a 5 year visa); and

  • if eligible, apply for Australian citizenship




17. I applied as a De Facto. Should I marry before my partner visa is granted?



The answer is No. If you applied as a de facto couple, I strongly advise you not to marry before your temporary visa is granted.


This is because, under the Australian family Law, a Marriage REVOKES any previous Relationship Registration!


So if you applied based on a de facto relationship using your relationship registration to waive the 12-month relationship requirement, having your relationship registration revoke could lead to a visa refusal. And some case officer have been refusing application because of this.


So to be on the safe side, if you applied as a de facto couple, just wait until your temporary visa is granted before getting married.




Need Visa Help? Contact Us Now!


FastVisa Australia's team of experts have more than 20 years combined experience processing Australian Partner visas.


We can help you to navigate all aspects of the application process and our legal experts specialise in dealing with complicated cases.


GET IN TOUCH with our friendly team and put your mind at rest!


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