Family of the visa applicant’s de facto partner completing a form 888
When completing a form 888, the family members of the visa applicant’s de facto partner can sometimes – incorrectly – describe themselves as the visa applicant’s ‘Mother in Law’, or ‘Brother in Law’, etc.
If the visa applicant and their sponsor were legally married, this description would be correct.
However, for de facto couples, the description is incorrect – as they are not legally married.
Therefore, when in a de facto relationship, your de facto partner’s mother (for example) is best to describe herself on the Form 888 as the ‘the applicant’s de facto partner’s mother’, rather than ‘the applicant’s Mother in Law’.
Whilst this may seem a minor thing, it’s best to get it correct.
How to refer to the applicant and sponsor on the Form 888
Partner visas can only be granted to spouses (legally married) or to de facto partners.
So, people completing Form 888s should avoid referring to partners as, for example, boyfriend/girlfriend.
For married couples, refer to each of the couple as Husband / Wife.
For de facto couples, refer to each of the couple as ‘de facto partners’.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
When the partner visa applicant lodges their online (onshore) partner visa application, they are actually applying for three different visas at thre same time, in the one application.
The one application applies for:
A Bridging Visa A (BVA)
A Subclass 820 (temporary) partner visa
A Subclass 801 (permanent) partner visa.
(These three visa applications are automatically combined)
After the partner visa applications have been lodged, the partner visa sponsor then lodges their:
Partner visa sponsorship application.
The partner visa sponsorship application can only be lodged after, and not before, the partner visa applicant lodges their applications.
Immigration’s processing of these lodged applications then proceeds like this:
The BVA application is processed and decided first.
The Visa sponsorship application is processed and decided second.
The subclass 820 (temporary) partner visa application is then processed and decided.
Two years after the date that the partner visa applicant applies for the partner visas (and presuming that their temporary partner visa has been granted within that two year period), Immigration will contact the applicant and request that they lodge new forms, Statutory Declarations, witness statements, relationship evidence, etc. so that immigration can process their subclass 801 permanent partner visa application.
Basically, this is immigration’s detailed check that the relationship is still genuine and continuing before the permanent partner visa is processed and – all going well – granted.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Applicant’s for Australian Partner visas must undergo a medical examination.
To be granted the partner visa, the applicant must either:
pass the medical examination
or
be granted a ‘waiver’ of the requirement to pass the medical examination, after failing the examination.
Whether or not a person passes the medical examination depends partly on whether or not they have a health condition, the health costs of which (to the Australian Health Care system) would exceed the ‘Significant Cost Threshold’.
The estimated health costs for a condition are generally assessed for a period of 5 years (or 3 years if the applicant is aged 75 years or older).
However, if an applicant has a permanent or ongoing condition with a reasonably predictable course, the health costs will be calculated over the applicant’s remaining life expectancy up to a maximum of 10 years.
How Much is the Significant Cost Threshold?
Previously it was $51,000. Form July 1st 2024, it has been increased to $86,000.
This is a welcome move.
It means that applicants with health conditions that are estimated to cost between $51,000 and $86,000 will now not automatically fail the health examination because the estimated health costs exceed the Significant Cost Threshold.
What’s the minimum and maximum number of Form 888s that you can provide?
On the online partner visa application form, the details of two witnesses to your relationship are required to be listed. These witnesses will be completing Form 888s.
So, a minimum of two people are required to complete Form 888s that you then (electronically) attach to your partner visa application.
If two people is the minimum, can you get more than two people to complete Form 888s? – yes you can.
In fact, it is very helpful to use more than two people for Form 888s. Couples in genuine relationships can often get six, eight, or even more, strong and useful form 888s.
Who can complete form 888s?
Form 888s can be completed by family, friends, work colleagues, etc.
It’s best to mix it up – use some family members (of both partners), some friends from each of you, maybe a work colleague or two that knows you both.
People completing Form 888s don’t have to be Australian Citizens or Australian permanent residents. Also, they can be living outside Australia.
So, don’t feel that you have to limit yourself to just supplying two Form 888s – in fact, it’s almost always better to provide more – providing that they are all truthful and genuine.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
As it does most years, the government has increased from July 1st, 2024, its visa application charges for partner and prospective marriage visa applications.
The increase in visa application charges for partner visa and prospective marriage visa applications is reasonably modest this year – thankfully, as the charges are already very high!
The new visa application charges that apply from July 1st, 2024, are
Partner Visa (lodged onshore or offshore) $9,095
+ Any Dependent Child aged under 18 $2,280
+ Any Dependent Child aged 18 or over $4,550
Prospective Marriage Visa $9,095
+ Any Dependent Child aged under 18 $2,280
+ Any Dependent Child aged 18 or over $4,550
Partner Visa (onshore) for a Prospective Marriage Visa holder $1,515
Dependent Child aged under 18 $380
Dependent Child aged 18 or over $760
A Credit card payment fee of 1.4% needs to be added to the above charges if paying by Credit Card – which I recommend as it avoids delay in lodging the application and valid receipt of the lodged application ids immediately confirmed.
These new visa application charges only apply to visa applications lodged after July 1st, 2024. Applications lodged before then won’t be affected.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
A new Form 888 (which is used by witnesses to your relationship) was introduced in July 2023 – it’s simpler and better.
However, there is this new requirement on the new form 888 for the:
Transaction Reference Number
and
File Number
The Transaction Refernce Number and File Number are allocated to your partner visa application whilst it is being prepared (Transaction Reference Number) and after it is lodged (File Number).
What if you don’t yet have these numbers?
If you are having form 888s prepared and you don’t yet have thses numbers, you can:
add them to the Form 888 later when you have them
or, less ideally,
Lodge the form 888 without them (Immigration can still identify the visa application from the visa applicant’s name on the form).
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Subclass 309/100 applicants and biometrics if in Australia.
Biometrics (fingerprints and photo) are usually required to be provided by offshore partner visa applicants from many, but not all countries.
If a subclass 309/100 partner visa is lodged offshore and the visa applicant subsequently travels to Australia (on a visitor visa, for example) whilst the 309/100 application is being proccessed and the Immigration Department then requests that Biometrics be provided – what can the applicant do?
The best thing to do is to telephone the immigration department (Call 131 881) and speak to them.
It is quite possible, though not guaranteed, that because the offshore partner visa applicant is now in Australia, the immigration deprtment may waive (not require) the partner visa applicant to provide their biometrics for their offshore partner visa application.
Overall, if you are in this situation, you have everything to gain, and little to lose, by contacting the immigration department and requesting a waiver.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
As we discussed in a previous post, the partner visa medical can only be completed by the visa applicant after the partner visa application has been lodged.
After you have completed the partner visa medical, the status of your visa application within Immiaccount (under the ‘Health Assessment’ tab) will change.
If the medical examination has been completed successfully and you have passed the health assessment, it will change to read:
Health clearance provided – no action required
All health examinations required for the specified visa subclass have been finalised. Processing of this person’s visa application can now continue. This will not occur until a case officer investigates the case in line with published processing times for the visa that has been applied for. Do not contact the department about health examinations in the meantime.
Importantly, other than this change to the Health Assessment status within Immiaccount, Immigration will not contact you or message you to tell you that you have successfully completed the medical examination.
What happens if you don’t pass the health assessment?
If you don’t initially pass the health assessment and so more medical information is required, immigration or BUPA (the medical examination provider) will normally send you (or your agent) an email that may request that you obtain, for example, further specialist medical reports.
If it’s conclusive from the initial medical examination that you don’t pass the health assessment (an example of this may be if you have HIV) then the Immigration department will normally send you (or your agent) a ‘section 56’ letter advising you that you have not passed the health assessment, why you have not passed it, and that you have a right to request a waiver of the requirement that you pass the health assessment.
The time given to respond in the above two situations is very important – don’t miss the response deadline.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
The partner visa medical can only be completed by the visa applicant after the partner visa application has been lodged.
It would be useful if the medical could be completed before the partner visa application was lodged – so that an applicant with a health condition knows if they will pass the medical before they pay the (almost $9,000) visa application charge.
However unfortunately, this is not possible.
After the partner visa application is lodged, the immigration department advises the visa applicant to complete the medical examination within 28 days.
If it is not possible to complete the medical examination within 28 days (because, for example, there are no appointments available in that period), then it is crucial that the immigration department be advised of this before the 28 days expires – along with providing evidence of your appointment to complete the medical outside of the 28-day period.
Ocassionally, applicants have had partner visa applications refused for not completing the medical within 28 days and not advising the department within the 28 days of why they cannot complete it within the time period and showing the department that they have an appointment for a later date.
If there are no medical appointments available within 28 days, keep trying to book – appointments are sometimes cancelled and become available again.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
This information is correct at March 1st, 2024. But, keep in mind that immigration law changes from time to time.
Tags: appointment, medical, Partner, Visa Posted in Partner Visa Tips | Comments Off on When partner visa applicants can do the medical examination and what happens if it’s not done in time.
On 24 November 2023, Australian immigration law changed with regard to who can apply for a review of an unsuccessful subclass 309 application.
Prior to this amendment:
If a refusal decision for a subclass 309 offshore partner visa application was received, only the Australian sponsor (not the visa applicant) could apply for a review of that refusal decision at the Administrative Appeals Tribunal (AAT).
Since this amendment, unsuccessful subclass 309 visa applicants can apply for a review of that refusal decision (merits review) at the AAT.
This is an extract from the ‘Explanatory Memorandum’ about this amendment:
‘The (amendments) also provide for a Subclass 309 visa applicant to have standing to apply for merits review directly, rather than the sponsor. This facilitates access to merits review for applicants who may be affected by circumstance such as family violence and to align with the onshore Subclass 820 visa which provides standing to the applicant rather than the sponsor.’
This is a positive development for unsuccessful subclass 309 visa applicants.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
This information is correct at January 29th, 2024. But, keep in mind that immigration law changes from time to time.
Tags: AAT, appeal subclass 309, Review Posted in Partner Visa Tips | Comments Off on Unsuccessful subclass 309 applicants can now apply for a review of that refusal decision themselves.
On 24 November 2023, there was a significant amendment to Australian immigration law that is potentially of benefit to partner visa applicants.
Prior to this amendment:
Applicants for subclass 820 (onshore) partner visas had to be in Australia when they applied for the visa, and in Australia when the visa was granted.
Applicants for subclass 309 (offshore) partner visas had to be outside Australia when they applied for the visa, and outside Australia when the visa was granted.
The November 24th amendment means that subclass 820 and subclass 309 partner visa applicants can now be granted a visa regardless of whether they are inside or outside Australia when the visa is granted.
The changes apply to (undecided) applications lodged prior to the changes being made, and applications lodged since the changes were made.
Subclass 820 applicants still have to be inside Australia when they lodge the application.
Subclass 309 applicants still have to be outside Australia when they lodge the application.
Overall, it’s a welcome amendment. Previously, applicants sometimes had to leave, or return to, Australia – merely to be in the required place for the grant of their visa. This will no longer be required.
Subclass 300 applicants
Unfortunately, these changes do not apply to subclass 300 (Prospective Marriage visa) applications – subclass 300 applicants still need to be outside Australia when they lodge their application and when their visa is granted.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
This information is correct at December 29th, 2023. But, keep in mind that immigration law changes from time to time.
Tags: Partner, Visa Posted in Partner Visa Tips | Comments Off on Good news – you can now be inside or outside of Australia when your subclass 820 or 309 visa is granted.
Answering the questions about dates you entered and exited Australia
Partner visa applicants and their sponsors are required to answer questions on online visa and sponsorship application forms, and on the form 80, about:
Periods of time they have spent in Australia
Exact dates of entry to, and exit from, Australia.
Not sure of those exact dates of entry/exit? – that’s common.
You may have some old Australian entry and exit stamps in old passports, or maybe not.
If you are unsure of your dates of entry/exit, help is at hand.
You can apply to the Department of Home Affairs for a copy of your International Movement Records, which will show all of the dates you entered and exited Australia, from 1981 until now.
To apply, you complete the online application form which you can access here.
There is no cost to apply for and to receive a copy of your international movement records.
Obtaining a copy of your International Movement Records can also help Australian sponsors answer the question about countries outside Australia that they have travelled to in the last ten years.
Whilst the movement records won’t show you what country you travelled to, it will prompt your memory about all times that you travelled from Australia.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
This information is correct at November 24th, 2023. But, keep in mind that immigration law changes from time to time.
Tags: australia, enter, exit Posted in Partner Visa Tips | Comments Off on How to tell the dates you previously entered and exited Australia? – use this form.
Form 80 – Personal particulars for assessment including character assessment – the ‘Character’ Form.
Form 80 is a 19-page form that requires detailed information about a visa applicant and their history.
Form 80 is not a mandatory form for partner visa applicants – however, the Case Officer may request it.
Form 80 is not usually required for partner visa sponsors.
Should a partner visa applicant complete a Form 80?
In my view, the answer is yes – even though the Case Officer may not have asked for it.
The reasons for my view are:
Most of the information required for the form 80 is also required for the online visa application – you will already have most of the information.
If you wait until the Case Officer requests a Form 80 from you (they may do), there is a strong possiblilty that this will substantially delay the processing of your partner visa application.
Another advantage of lodging the completed Form 80 when you lodge the online partner visa application is that your visa application could then be ‘Decision Ready’ and able to be approved the first time the Case Officer picks it up – provided all other criteria are met/provided.
You can download the most recent version of Form 80 here.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
A person who obtains a permanent partner visa in Australia (the main applicant) is limited from sponsoring a (new) partner for a partner visa for five years from the date they applied for their partner visa with their former partner.
How does this sponsorship limitation affect dependants (usually children) who were included in the original partner visa application?
The good news for dependants is that the sponsorship limitation does not apply to them – it applies to the primary applicant for the previous partner visa only.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall.
Immigration Lawyer & Solicitor.
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is correct at August 31st, 2023. But, keep in mind that immigration law changes from time to time.
Tags: dependents, limitiation, sponsorship Posted in Partner Visa Tips | Comments Off on If you were a ‘dependant’ on your parent’s partner visa – does the 5-year limitation on sponsoring a partner apply to you?
A new Form 888 was released by the department of immigration this week – it’s a significant improvement on the previous version of the Form 888.
Until now, the Form 888 has been a Statutory Declaration. This means that the person signing the Form 888 needed to have their signature witnessed by an ‘authorised’ person.
That’s relatively straighforward, although somewhat inconvenient, for people in Australia.
For people outside Australia, it was often difficult and could be expensive.
The new Form 888
The new Form 888 is merely a written statement, and is not a Statutory Declaration.
That means that the person signing it does not need to have their signature witnessed.
The requirement that everything written in the Fom 888 must be true and correct remains.
Changes to the Form 888
This new form 888 will be much easier for your friends and relatives to use, as:
Anybody in any country that is 18 years of age or older, and that knows you both (applicant and sponsor), can complete the new version of the form 888.
The new form 888 is no longer a Statutory Declaration – so it does not need to be signed in front of an authorised witness. Only the person completing the form 888 needs to sign it.
The person’s identity document that they provide with the form 888 no longer needs to be a ‘Certified True Copy’.
The person no longer needs to list their occupation or contact telephone number.
All up, it’s a welcome common-sense change to the Form 888.
The new version of the Form 888 can be downloaded here: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://immi.homeaffairs.gov.au/form-listing/forms/888.pdf
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall.
Immigration Lawyer & Solicitor.
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is correct at July 14th, 2023. But, keep in mind that immigration law changes from time to time.
Tags: 888, Form, new Posted in Partner Visa Tips | Comments Off on New Form 888 for Partner visas and Prospective Marriage visa released – it’s better!
Subclass 309/100 partner visa applications and Bridging Visas
Applicants for a subclass 820/801 (onshore) partner visa are automatically granted a Bridging Visa A with work rights – as long as they held a substantive temporary visa at the date they applied for the partner visa.
Applicants for a subclass 309/100 (offshore) partner visa are not automatically granted a Bridging Visa.
However, in some – limited – circumstances they can obtain a Bridging Visa in Australia
The Limited Circumstances
An applicant for a subclass 309/100 (offshore) partner visa can potentially obtain a Bridging Visa in Australia – if they held a substantive temporary visa (such as a visitor visa) at the date they lodged the application for the subclass 309/100 visa.
An example of how this works.
A person is outside Australia and holds a valid subclass 600 visitor visa.
Whilst outside Australia and holding that visitor visa, they apply for a subclass 309/100 partner visa.
Whilst the subclass 309/100 application is being processed, they travel to Australia on their visitor visa.
Whilst in Australia on the visitor visa, they apply for the Bridging visa that is associated with their application for the subclass 100 visa to be granted.
If/when the Bridging Visa is granted it will not have work rights unfortunately.
However, it will allow the applicant to lawfully remain in Australia after their visitor visa expires and until they receive the decision on their subclass 309 partner visa application.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall.
Immigration Lawyer & Solicitor.
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is correct at June 19th, 2023. But, keep in mind that immigration law changes from time to time.
In the recent Federal Government budget there were two announcements that affect Australian partner visa applicants.
One will negatively affect applicants, the other may positively affect applicants.
The negative
From July 1st, 2023, the government will increase its visa application charges for partner and prospective marriage visa applications.
The increase in visa application charges for partner visa and prospective marriage visa applications will be 6% (an approximately $500 increase).
This is on top of the existing government partner visa application charges that are already very high!
These new partner visa application charges only apply to visa applications lodged after July 1st, 2023. Applications lodged before then won’t be affected.
The Positive – (potentially)
In the budget the government also announced that they will be ‘onboarding’ (hiring) 500 new Immigration Case Officers over the next 12 months.
This is potentially good news for partner visa applicants who currently experience the injustice of paying a very high government visa application charge, which is frequently combined with slow processing of their visa application.
Hopefully, a significant number of new Case Officers will be allocated to processing partner visa applications – we shall wait and see.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
This information is correct at May 15th, 2023. But, keep in mind that immigration law changes from time to time.
Tags: 2023, charge, increase, Partner, Visa Posted in Partner Visa Tips | Comments Off on The government’s partner visa application charges will increase on July 1st, 2023. More Immigration Case Officers are to be employed.
The temporary partner visa (subclass 820 0r 309) and the permanent partner visa (subclass 801 or 100) are both applied for at the same time and in the same online application.
Initially, applicants are processed for the temporary partner visa.
Two years from the date the partner visas are applied for, applicants are eligible to be processed for the permanent partner visa (permanent residency).
Documents required for second stage partner visa processing
To be processed for the permanent partner visa, there is an online form that needs to be completed, updated relationship evidence needs to be provided, and Statutory Declarations from the sponsor and witnesses need to be provided.
Are new police checks required?
As part of applying for the temporary visa, visa applicants and their sponsor would have provided police checks for each country that they have spent a year or more in (cumulatively) in the last ten years.
For the second stage partner visa processing, the sponsor is not required to supply new police checks.
However, the visa applicant is required to provide a new police check for each country they have spent a cumulative period of a year or more in since they were granted their temporary partner visa (subclass 820 or 309).
For many applicants, this will mean they will need to provide a police check for Australia.
Some applicants will need to provide a new police check for other countries – it all depends where they have been living since the grant of the temporary partner visa, and how long they have been living there for.
Further Information
Feel free to contact me if you would like to book a consultation for more information about anything discussed here.
Basically, it’s good evidence for a partner visa application that as a married or de facto couple, you have combined your finances and you are financially supporting each other.
Do we both need to contribute to our joint bank account?
Ideally, yes. Although sometimes only one partner will have an income, so in that situation it’s ok if only one partner contributes to the joint bank account.
When both partners are contribuitng to the account, it’s not necessary that it be on a 50/50 basis – one partner may be earning more than the other, for example. So, 80/20 or 60/40 contibutions, for example, are also OK.
Should we spend our funds in the joint bank account?
You could have a joint bank account just to save money in – for a rental bond, or a home loan deposit, for example.
Or – and this is good as evidence for a partner visa application – you could both use the funds in the joint bank account for your day to day living expenses – your groceries, rent, car expenses, clothing, entertainment, etc. etc.
Some couples have two joint bank accounts – one for saving and one for their living expenses – that’s good evidence.
How long should we have the joint bank account for?
The longer you have had, and used, your joint bank account before you lodge the partner visa application, the stronger it is as evidence.
Further Information
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Recently, we’ve noticed a distinct slow down in partner visa processing.
This slowdown of partner visa processing appears to apply to partner visa appications lodged onshore (Subclass 820) and those lodged offshore (subclass 309). The permanent stage partner visa processing (subclasses 801 and 100) has also slowed down.
Overall, partner visa processing definitely appears to be taking longer than it was a year ago.
Why?
This apparent slowdown in the processing of partner visa applications appears to have commenced soon after the Federal Government changed in May 2022.
We imagine that this is because the new government is giving higher priority to processing visa applications that potentially address the workplace ‘skills shortage’ in Australia.
So, some employer-nominated and ‘skilled’ visa applications appear to be being processed quickly.
Possibly, the immigration department has re-assigned some of its staff from the partner visa processing section to the skilled visa processing section.
What can be done?
For those applying onshore for subclass 820 partner vias, the slowdown in processing is frustrating. However, they would normally hold a Bridging Visa A (with full work rights) and have access to medicare. Importantly, they are together in Australia with their partner during the processing period.
For subclass 309 parter visa applicants offshore, the situation is often more challenging as many of them are separated from their partners during the visa processing period. That’s difficult, and extended processing times are very unfair to them.
One thing that partner visa applicants can do to speed up processing after it commences is to lodge a partner visa application that is ‘decision-ready’. That means an application that can in theory be dcided upon on the first day that the Case Officer starts processing it – nothing is missing.
When will processing speed up again?
It’s difficult to say. The current apparent policy to prioritise processing of skilled and work visas could change at any time – next week or next year. Let’s hope it’s sooner rather than later.
Partner visa applications are still currently beng processed – just more slowly.
Further Information
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Australian citizens and Australian permanent residents can potentially sponsor their partner (spouse or de facto) in a partner visa application.
The question often arises – how soon after I am granted my Australian permanent residency visa can I sponsor my partner?
It is understandable that there is some confusion around this – permanent residents cannot immediately sponsor relatives for all the different visa types.
For example, an Australian permant resident that wishes to sponor a parent (mother or father) for most types of parent visas, must wait until they have held their Australian permanent resident visa and been ‘settled’ (lawfully resident) in Australia for two or more years, before they can sponsor their parent.
The same two or more year ‘settled’ requirement applies to permanent resident sponsors of ‘Aged Dependent’, ‘Carer’ and ‘Remaining Relative’ visas.
The Good News
However, the good news is that the two or more year ‘settled’ requirement does not apply to Australian permanent resident sponsors of partner visas.
So, Australian permanent residents can potentially sponsor their partner for a partner visa immediately after they are granted their Australian permanent residency visa.
Further Information
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
This information is correct at January 19th, 2023. But, keep in mind that immigration law changes from time to time.
Tags: Partner, settled, sponsor, Visa Posted in Partner Visa Tips | Comments Off on Australian Permanent Residents – how soon after getting PR can you sponsor your partner?
Holders of a subclass 309 (temporary partner visa) are allowed to leave Australia, and to return to Australia, whilst it is current. The subclass 309 visa remains current until the visa holder receives a decision on their subclass 100 (permanent partner visa) application.
Two years after the person has applied for the subclass 309 and subclass 100 visas (they are applied for together), they are eligible to be processed for the subclass 100 visa (after lodging some additional forms and updated evidence of their ongoing and genuine relationship).
The processing of the subclass 100 visa takes some time. Some subclass 309 visa holders may want to travel overseas during that subclass 100 processing period. However, my recommendation is that, if possible, avoid leaving Australia whilst your subclass 100 visa application is being processed.
Notwithstanding that subclass 309 visa holders can leave Australia and return to Australia whilst their subclass 309 visa is current, I recommend that they do not leave Australia whist their subclass 100 visa application is being processed.
The reasons for my recommendation are slightly complex:
⦁ Firstly, whilst most subclass 100 permanent partner visa applications are approved, not all are.
⦁ If a person’s subclass 100 application was refused whilst they were overseas, their subclass 309 visa would cease at the date of the refusal.
Importantly, if a person is outside Australia when their subclass 100 visa is refused – it is not possible to appeal that refusal decision.
However, if a person is in Australia when their subclass 100 visa is refused – it is possible to appeal that refusal decision.
So, even though a person may consider that it is extremely unlikely that their subclass 100 visa application will be refused, they may want to avoid leaving Australia whilst their subclass 100 visa application is being processed.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
This information is correct at December 22nd, 2022. But, keep in mind that immigration law changes from time to time.
Tags: Processing, subclass 100, travel Posted in Partner Visa Tips | Comments Off on Avoid leaving Australia whilst your permanent offshore partner visa (subclass 100) is being processed.
Holders of a subclass 820 (temporary partner visa) are allowed to leave Australia, and to return to Australia, whilst it is current. The subclass 820 visa remains current until the visa holder receives a decision on their subclass 801 (permanent partner visa) application.
Two years after the person has applied for the subclass 820 and subclass 801 visas (they are applied for together), they are eligible to be processed for the subclass 801 visa (after lodging some additional forms and updated evidence of their ongoing and genuine relationship).
The processing of the subclass 801 visa takes some time. Some subclass 820 visa holders will want to travel overseas during that subclass 801 processing period.
In that situation, and notwithstanding that subclass 820 visa holders can leave Australia and return to Australia whilst their subclass 820 visa is current, I recommend that they consider applying for a Bridging Visa B (BVB) before they depart Australia.
The reasons for my recommendation are slightly complex:
⦁ Firstly, whilst most subclass 801 permanent partner visa applications are approved, not all are.
⦁ If a person’s subclass 801 application was refused whilst they were overseas, their subclass 820 visa would cease at the date of the refusal.
⦁ They would then need to apply for another visa (most likely a visitor visa) to return to Australia to be able to lodge an appeal of the subclass 801 refusal – within the time-limit allowed to lodge the appeal. The appeal application can’t be lodged whilst the person is outside Australia.
⦁ The person would need to apply for and obtain a visitor visa very quickly, so as to be able to get back to Australia in time to lodge the appeal. Unfortunately, obtaining a visitor visa is not always easy, quick, or straight-forward.
⦁ Subclass 820 visa holders hold an (inactive) Bridging Visa A (BVA) – that is associated with their subclass 801 visa application.
⦁ BVA holders are eligible to apply for a BVB. A BVB holder can return to Australia on that BVB during the validity of the ‘re-entry period’ that is specified on the BVB – so they wouldn’t normally need to apply for a visitor visa to re-enter Australia if their subclass 820 visa ceases (due to a subclass 801 visa application refusal) whilst they were overseas.
So, even though a person may consider that it is extremely unlikely that their subclass 801 visa application will be refused, they may want to apply for a BVB before travelling overseas anyway – for added security when they are overseas.
The government’s visa application charge for a BVB is (currently) $165. Whilst there is no guarantee that a BVB will be granted, it should be.
Subclass 820 visa holders who are having their subclass 801 visa application processed – and are travelling overseas – don’t have to apply for a BVB before they travel – but they may want to.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
This information is correct at November 22nd, 2022. But, keep in mind that immigration law changes from time to time.
Tags: Processing, subclass 801, travel Posted in Partner Visa Tips | Comments Off on Something to consider if you travel overseas whilst your permanent onshore partner visa (subclass 801) is being processed.
Are you required to change your name to your spouse’s family name?
No, you are not required to do so.
You can do so, but you don’t have to – some people do change their name, other’s don’t.
For the partner visa application, is it beneficial to change your name to your spouse’s family name?
Some applicants think that it is potentially beneficial – possibly because they think it makes their marriage look more ‘committed’ or ‘genuine’.
However, this is not necessarily the case in Australia.
Estimates vary slightly, but it appears that approximately 25% to 30% of women and around 97% of men do not change their name after marrying in Australia.
So if you don’t change your name after marrying, you would be among a significant minority of women, and the overwhelming majority of men, who do not do so.
If you do choose to change your name, it may be best to wait – for these reasons:
Partner visa applicants are required to provide a police clearance for each country they have spent a year or more in (cumulatively) in the last ten years. These police clearances are required in every name the applicant has ever been known by. The more names that you have been known by, the harder that becomes.
The partner visa application is lodged using the name recorded in the applicant’s current passport. Yes, it’s possible to get a new passport in a new (married) name – but, how long will it take and how much time do you have before you need to lodge the partner visa application?
A potential alternative to changing your name before lodging the partner visa application (or during its processing).
An alternative if you do want to change your name, is to consider waiting until your permanent partner visa application is processed and granted.
Why? – it potentially just keeps things a lot simpler with the partner visa application.
Changing your name doesn’t necessarily display to the immigration department that your marriage is more committed and genuine – many married partner visa applicants don’t change their name and are granted partner visas.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
This information is correct at October 26th, 2022. But, keep in mind that immigration law changes from time to time.
Tags: change name, Partner Posted in Partner Visa Tips | Comments Off on Recently married and lodging a partner visa – should you change your family name?
Couples lodging a partner visa application need to show immigration that they have combined their financial affairs.
Having a joint bank account (a bank account in both of the couple’s names) is one piece of useful evidence that a couple’s finances have been combined.
It’s important that both of the couple actively use their joint bank account after they open it – ideally both making deposits into it and using the funds in it for day-to-day living expenses.
Sometimes, one of the couple will be in Australia on a temporary visa – a visitor visa for example.
Can the couple open a joint bank account in Australia if only one of them is an Australian permanent resident or citizen? The answer is possibly – it depends on which Australian bank you approach.
In the recent past, the following banks have been known to open joint bank accounts for a couple where one of the couple is in Australia on a temporary visa (such as a visitor visa):
Commonwealth (Google ‘CBA migrant banking’)
Westpac
ANZ
BankWest
This list does not include every Australian bank that provides this service – some, but not all, other banks do also.
Keep in mind that banks change their account products from time to time – what they offer today, they may not offer tomorrow.
All the best with opening (and using!) your joint bank account.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
As it does most years, the government has increased from July 1st, 2022, its visa application charges for partner and prospective marriage visa applications.
The increase in visa application charges for partner visa and prospective marriage visa applications is reasonably modest this year – thankfully, as the charges are already very high!
The new visa application charges that apply from July 1st, 2021, are
Partner Visa (lodged onshore or offshore) $8,085
+ Any Dependent Child aged under 18 $2,025
+ Any Dependent Child aged 18 or over $4,045
Prospective Marriage Visa $8,085
+ Any Dependent Child aged under 18 $2,025
+ Any Dependent Child aged 18 or over $4,045
Partner Visa (onshore) for a Prospective Marriage Visa holder $1,350
Dependent Child aged under 18 $335
Dependent Child aged 18 or over $675
These new visa application charges only apply to visa applications lodged after July 1st, 2022. Applications lodged before then won’t be affected.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
If you have sponsored your fiancee for a Prospective Marriage Visa and that visa has been granted, your fiancee will need to lodge a partner visa application after entering Australia on the Prospective Marriage visa and marrying you.
As your fiancee’s sponsor, you will have applied to be approved as their sponsor as part of the Prospective Marriage visa application process.
When your partner lodges their partner visa application (after entering Australia and marrying you), do you again need to apply to be approved as your partner’s sponsor as part of the partner visa application process?
The answer is yes – even though you have already been approved as your partner’s sponsor in the Prospective marriage visa application process.
The reason that you need to apply again to be approved as your partner’s sponsor is contained in this excerpt from the Immigration Department’s policy:
A sponsorship must be lodged and approved for Prospective Marriage visa applicants. Another sponsorship form must be lodged where the Prospective Marriage visa holder has entered Australia, has married their sponsor while their visa was still valid and has then applied in Australia for a Spouse visa (whether or not their Prospective Marriage visa is still valid).
Although the sponsor would have lodged two separate sponsorships, as these sponsorships are both for the same person, the sponsorships are considered as one for the purposes of sponsorship limitations in accordance with regulation 1.20J.
In the partner visa application process, you cannot apply to sponsor your partner until after the partner visa application has been lodged. You can then lodge your new (second) visa sponsorship application.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall.
Solicitor / Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is correct at May 13th, 2022. But, keep in mind that immigration law changes from time to time.
Posted in Partner Visa Tips | Comments Off on Prospective Marriage Visa sponsors need to lodge a new sponsorship application when the partner visa is lodged.
Partner visa applicants who are in Australia may be eligible for Medicare from the time they lodge their partner visa application.
That is, they can potentially have access to Medicare before they receive a decision on their partner visa application.
Alternatively, some partner visa applicants are eligible for Medicare because they already hold a temporary visa with work rights (a student visa for example), or from the date their bridging visa with work rights commences.
How does this work?
The Health Insurance Act 1973 determines who is eligible for Medicare.
Section 3 of the Act states that:
An ‘eligible person’ means an Australian resident or an eligible overseas representative.
Section 3 of the Act also States that:
‘Australian resident’ means a person who resides in Australia and who is:
…
(f) a person who:
(i) is, within the meaning of the Migration Act 1958, the holder of a temporary visa; and
(ii) has applied for a permanent visa under that Act and the application has not been withdrawn or otherwise finally determined; and
and
(v) in respect of whom either:
(A) another person, being the person’s spouse, parent or child (each having the same meaning as in the Migration Act 1958), is an Australian citizen or the holder of a permanent visa under that Act;
or
(B) an authority to work in Australia is in force.
How this applies to a partner visa applicant
A partner visa applicant in Australia will hold a temporary visa (such as a bridging visa, a student visa or a visitor visa, for example) – so section 3 (i) is met.
A partner visa application is an application for both a temporary partner visa and a permanent partner visa.
So a partner visa applicant has applied for a permanent visa (as well as applying for a temportary visa) – so section 3 (ii) is met.
If the partner visa applicant is married to their sponsor and their sponsor is an Australian citizen or permanent resident – section 3(v)(A) is met.
If the partner visa applicant is not married to their sponsor, then they may be eligible becuase they already hold a temporary visa with work rights (for example, a student visa or a Bridging visa with work rights) – section 3(v)(B) is met.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall.
Solicitor / Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is correct at March 20th, 2022. But, keep in mind that immigration law changes from time to time.
Posted in Partner Visa Tips | Comments Off on You’ve applied for a Partner Visa – can you get Medicare?
Whether or not a person who has obtained a partner visa and is now a permanent resident or citizen of Australia can potentially sponsor a new partner for a partner visa depends upon the date that their application to sponsor their new partner is decided.
How this works:
This is the scenario:
a person has obtained a permanent partner visa (and possibly Australian citizenship) as the spouse or de facto partner of an Australian permanent resident or citizen
the relationship with the person who sponsored them for their partner visa (their former spouse or de facto partner) has finished
the partner visa holder has entered into a new marriage or de facto relationship and now wishes to sponsor their new partner for a partner visa.
In this scenario, the partner visa holder or citizen is potentially able to be approved as a sponsor for their new partner – but not until five years after the date that they originally applied for their partner visa.
So for example, if they origianlly applied for their partner visa on January 1st 2018, they would not be able to be approved as the sponsor of a new partner until after January 1st, 2023.
Does this apply to children and dependents of permanent partner visa holders?
This is the scenario:
a person has obtained a permanent partner visa (and possibly Australian citizenship) as the child or dependentof a spouse or de facto partner of an Australian permanent resident or citizen
the child or dependenthas entered into a marriage or de facto relationship and now wishes to sponsor their partner for a partner visa.
In this scenario, the child or dependent is potentially able to be approved as a sponsor for their partner – the five-year ban on sponsoring a partner does not apply to them.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall.
Solicitor / Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is correct at February 21st, 2022. But, keep in mind that immigration law changes from time to time.
Posted in Partner Visa Tips | Comments Off on Can a permanent partner visa holder sponsor a new partner for a partner visa? – possibly.
It is a requirement for the grant of a Prospective Marriage visa that you and your fiance(e) have met in person – before the visa application is lodged.
If you cannot prove to the Immigration Case Officer who is deciding on your application that you have met in person at least once, and that both of you were aged 18 years or older when you last met in person and before the visa application was lodged, the visa application is very likely to be refused unfortunately.
How to prove you have met in person?
There are a number of pieces of evidence that you could potentially use to prove this, including:
Flight tickets
Hotel bookings
Photographs of the two of you together.
The Importance of photographs
Case Officers are increasingly reluctant to approve Prospective Marriage visa applications without seeing photographs of the couple together – in addition to seeing other types of evidence that the couple have met in person.
So, when you are together, even if it is only once – take photographs! You can use them later as evidence.
Should you meet more than once before lodging the application?
Yes, if you can. However, it is not strictly necessary.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall.
Solicitor / Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is correct at January 21st, 2022. But, keep in mind that immigration law changes from time to time.
The immigration department’s partner visa statistics for the 2020/2021 year have just been released.
They show that in the 2020/2021 year:
72,376 partner visas were granted. This is by far the highest number of partner visa granted in a year, in the last ten years.
49,180 of these successful partner visa applicants were inside Australia when they applied for the visa.
23,196 of these successful partner visa applicants were outside Australia when they applied for the visa.
In the ten years from 2011-12 to 2020-21, applicants in Australia at time of lodgement have made up an increasing number of the total migration program.
Lodgements in the Family visa stream in 2020-21 were 9.4 per cent lower than in 2019-20.
The number of partner visa applications in the queue to be processed at 30 June 2021 was 64,111. This was a decrease of 33.4 per cent compared to the number of partner visa applications in the queue to be processed at 30 June 2020, which was 96,361.
The 33% reduction in the size of the partner visa processing queue is welcome. However, the size of the processing queue – at 64,000 – is still too large. Many applicants are waiting too long for their partner visa application to be processed.
Hopefully the size of the partner visa processing queue will decrease again in the 2021/2022 year as a result of the significant allocation of partner visa places in the 2021/2022 migration program – time will tell.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall.
Solicitor / Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is correct at December 21st, 2021. But, keep in mind that immigration law changes from time to time.
Posted in Partner Visa Tips | Comments Off on The backlog of partner visa applications in the processing queue has decreased.
The applicant(s) for the partner visa and their Australian sponsor both need to provide police clearances as part of the partner visa application process.
Children who are included in the visa application also need to provide police clearances – if they are 17 years of age or older.
What countries are police clearances required from?
Police clearances are required for the visa applicant and the sponsor from every country that they have spent a year or more in (calculated cumulatively – all visits to the country added together) in the last ten years.
How long are the police clearances valid for?
The Australian Immigration Department regard Police clearances as valid for 12 months – even if the police clearance says on it that it is valid for less than 12 months.
The immigration department may extend the clearance validity period from 12 to 15 months – if the visa is close to being granted and if delays in processing the visa application were caused by the department.
If a person obtains a police clearance from a country they have been in previously but left, and if they do not return to that country during processing of the partner visa, then the police clearance from that country should not expire.
Can Immigration ask an applicant or sponsor for a police clearance from a country that they have spent less than a year in?
Yes they can, and sometimes they do. Generally this would be due to having convictions in another country that have been disclosed, or being a person whose character was potentially ‘of concern’ to the immigration department.
Original Certificates not required
Originals of clearances are no longer required. Scanned copies are acceptable.
Original certificates issued in black and white by the relevant overseas authorities are acceptable for immigration purposes.
However, certificates that are provided in colour, which have been subsequently copied/scanned in black and white, are not acceptable. Such police clearances must always be
copied/scanned in colour.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall.
Solicitor / Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is correct at November 10th, 2021. But, keep in mind that immigration law changes from time to time.
Offshore partner visas grants and ‘First Entry to Australia’ dates
Partners of Australians can apply for a partner visa from outside Australia.
If successful, they are granted a subclass 309 (temporary partner visa).
Applicants in long-term relationships are potentially also granted a subclass 100 (permanent partner visa), immediately after they are granted the subclass 309 visa.
The visa grant letter will list a date that the visa holder must make their first entry to Australia by – using that visa.
This ‘first entry to Australia’ date is normally 12 months fom the date the visa was granted. Entering Australia before that first entry date ‘activates’ the partner visa.
What to do if you think that you may not be able to enter Australia before your ‘first entry to Australia date?
Due to the complexities of travelling internationally during the Covid-19 pandemic, some applicants may not have been able to enter Australia on their partner visa before the ‘first entry to Australia’ date.
Fortunately, in response to the Covid-19 situation, the Immigration Department is currently allowing visa holders to apply for an extension of the ‘first entry to Australia’ date.
Extension requests are generally being granted currently.
You apply for an extension online on the form available here:
This is some relevant information from the application form:
Use this form to contact us if you have a Permanent or Provisional visa and you can’t travel to Australia before the specified first entry arrival date (initial arrival date) condition advised in your visa grant letter.
A Provisional visa is a Temporary visa that leads to a Permanent visa.
Only complete this form if you are planning to travel to Australia within the next 12 months.
Extensions are potentially available now, but possibly won’t be in the future
Keep in mind that when the difficulties of travel due to Covid-19 subside, it is possible that the Immigration Department may no longer provide extensions to ‘first entry to Australia’ dates.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall.
Solicitor / Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is correct at October 13th, 2021. But, keep in mind that immigration law changes from time to time.
Posted in Partner Visa Tips | Comments Off on Can a ‘First Entry to Australia’ date be extended for holders of subclass 309 and subclass 100 partner visas?
For some, but not all, partner interview applicants and sponsors, the Department of Immigration will conduct an interview, either in person or by phone.
The interview is designed to probe each person’s knowledge about the relationship and about his/her partner, to help the immigration department determine whether a relationship is genuine. Interviews are conducted with the partner and the sponsor separately, not together.
The following is a sample list of some of the potential questions that might be asked in an interview.
This list is only a sample based on our knowledge of previous interviews and you could be asked any appropriate question. Quite often questions will be asked in relation to written statements made by you, your partner or witness/reference statements.
It is important that you be prepared for a wide range of questioning about various aspects of your life and relationship.
You should answer the questions truthfully. If you do not know the answer to a question it is OK to say that you do not know – that’s better than making up an answer.
If you do not know an exact date, for example, it is ok to say you don’t know the exact date but that it was ‘around xxx date’.
About Meeting Your Partner and Your Relationship
When did you meet?
Where did you meet?
What did you find attractive about your partner at first?
What do you (now) find attractive about your partner?
When did you start your relationship together?
When did you fall in love with your partner?
When did you consider yourselves “in a relationship”?
What’s the last thing each of you gave the other as a gift?
About You (the applicant)
How are you paying your bills and supporting yourself now?
How do you and your partner stay in contact? How often? What method(s) of communications?
What will you do when you come to Australia?
How much time have you spent with your partner’s family?
How much time has your partner spent with your family?
Why did you and your partner decide to apply for an Australian partner visa instead of a visa in your home country?
About Your Marriage
When did you decide to get married?
When did you officially become engaged?
Where were you when you became engaged?
Why did you get married?
Where was the marriage?
What was the name of the church you were married at?
How many people attended your marriage ceremony and reception?
What restaurant did you use for the food for your marriage?
Which of your family attended the marriage ceremony?
Which of your partner’s family attended the marriage ceremony?
Before you were married, how often did you date?
About Your Defacto Relationship
How long have you and your partner lived together?
Have you and your partner lived apart during the last 12 months? If so, please provide details.
What addresses have you and your partner lived at together, and for how long?
When and Why did your previous defacto relationship end? (if applicable)
About Your Partner
What is your partner’s address?
When was your partner born?
Does your partner have a degree? If so, what type and from where?
What year did your partner graduate from college? (if applicable)
What does your partner do for work?
Where does your partner work?
Is your partner at work now?
How does your partner get to and from work?
What is your partner’s income?
What hours does your partner work? Any overtime?
What size clothes does your partner wear?
What are your partner’s favourite foods?
What are your partner’s hobbies?
What does your partner do in his/her spare time?
What are your partner’s parents’ names?
What do you call your partner’s parents (nicknames, their first names, etc)?
What does your partner’s father do for work? Where is he employed?
What are the names of your partner’s brothers and sisters?
What do your partner’s brothers/sisters do for work? Where are they employed?
What is your partner’s parents’ address?
What are the name(s) of any previous wives of your partner?
Where is your partner’s child now (if partner has a child)?
What do you love about your partner?
About Traveling
What visits has your partner made to come to see you?
What visits have you made to go see your partner?
Where do you go out to visit when you go out together?
About Living Together With Your Partner
Do any others live in the home you share with your partner? If so, who?
Why do you allow others to live in the house with your partner?
What side of the bed does your partner sleep on?
What religion do you practice in your home?
If you and your partner are from different religions, how will you handle that with your kids?
Please describe your home (that you share with your partner).
Please describe the bedroom you sleep in in your home.
Do you have any pets?
What colour are the curtains or blinds in the bedroom?
Have you and your partner made any major financial purchases together?
Have you and your partner made any major financial commitments (leases, etc) together?
What’s the last film you saw together with your partner?
(referencing a photo) Who is this person in the photo of you two (describes photo)?
What will you do if this visa application is refused?
Do you plan to have children with your partner?
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall.
Solicitor / Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is correct at September 10th, 2021. But, keep in mind that immigration law changes from time to time.
Posted in Partner Visa Tips | Comments Off on Sample Partner Visa Interview Questions
All applicants for Australian partner visas are required to complete a health assessment (medical examination).
Generally speaking, a partner visa applicant must be free from a disease or condition where the providing of health care or community services in Australia to the person with that condition would be likely to:
• result in a significant cost to the Australian community in the areas of health care and community services;
or,
• prejudice (restrict) the access of an Australian citizen or permanent resident to health or community services.
If the applicant passes the medical examination, then nothing further will be heard about the medical examination and processing of the partner visa application will continue.
The Waiver Process
If the applicant does not pass the medical examination, then it is possible to request that the requirement to pass the medical examination be ‘waived’ (disregarded).
If the requirement to pass the medical examination is waived (for an applicant who does not pass the medical examination) then the partner visa can still be granted if the applicant meets all other requirements for grant of the visa, even though the medical examination has not been passed.
What is required to obtain a Waiver of the requirement to pass the medical examination?
The Waiver decision maker must be satisfied that grant of the visa to the applicant that does not pass the mededical examination would be unlikely to result in:
(a) undue cost to the Australian community.
or
(b) undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.
What does ‘undue’ mean?
Although ‘undue’ is not defined in migration law:
• the dictionary definition of undue is “unwarranted; excessive; too great”
and
• the courts have indicated that a broad range of discretionary considerations can be taken into account in determining whether costs or prejudice to access are “undue”, which, in a given case, may include mitigation of costs or service, or consideration of compelling and compassionate circumstances.
Obtaining a waiver of the health requirement for a visa applicant that has not passed the medical examination can be possible, but it is complex and difficult.
If you need to apply for a waiver I strongly recommend that you consider getting advice and representation from a Immigration Lawyer or a Registered Migration Agent that has significant experience in the area.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
The Publication Glam Adelaide reported the following on July 15th 2021:
As well as taking home the top prize for the most liveable in Australia, Adelaide can now add another string to its bow, having been found the most honest city in Australia.
Polishing up an impressive collection of bronze medals, Adelaide has now been found the third most liveable city in the world and the third most honest, furthering the city’s reputation as a friendly and great place to live.
The Honest City study, compiled by German data analytics group Twinner, pulled together data from car dealerships, government transparency, economic transparency and theft rates amongst cities around the world, to produce their findings of the world’s most honest locations.
Factors such as how likely citizens would be to return a wallet filled with money were also considered.
Not only the most liveable city in Australia, Adelaide is reigning supreme amongst global heavyweights, joining Zurich and Tokyo as the top three most honest cities in the world, with a score of 94.9 out of a perfect 100 (which was actually reached by Zurich).
Twinner released the study as part of their mission to increase transparency in the second-hand car sales industry, looking to assess how car dealerships are viewed around the world.
Joining Adelaide in the top ten as the 10th most honest city was fellow Aussies, Brisbane, rounding out the group, which was whittled down from a shortlist of 75 global cities, from an initial group of 350.
The top 10 cities found to be the most honest in the world were as follows:
Zurich
Tokyo
Adelaide
Phoenix
Hamburg
Amsterdam
Munich
Copenhagen
Edinburgh
Brisbane
This comes after it was announced earlier this year Adelaide finally overtook long-time winners Melbourne as the most liveable city in Australia, and third in the world.
The Economist Intelligence Unit’s Global Liveability Index has become a much anticipated study each year, with cities around the world clamouring to see where they placed, rated on factors such as healthcare, stability, culture and environment, education and infrastructure.
Adelaide’s scores hit it out of the park in the 2021 rankings, even scoring a perfect 100 in two of the categories: healthcare and education, with the full report also touching on the impact COVID related lockdowns have had on cities around the world.
Neighbour Auckland, New Zealand was crowned champion in the liveability rankings, with success for another Japanese city, Osaka, coming in in an impressive second place./
To read the full study on the world’s most honest cities, visit here.
As it does most years, the government has increased from July 1st, 2021, its visa application charges for partner and prospective marriage visa applications.
The increase in visa application charges for partner visa and prospective marriage visa applications is reasonably modest this year – thankfully, the charges are already very high!
The new visa application charges that apply from July 1st, 2021, are
Partner Visa (lodged onshore or offshore) $7,850
+ Any Dependent Child under 18 years old $1,965
+ Any Dependent Child 18+ $3,930
Prospective Marriage Visa $7,850
+ Any Dependent Child under 18 years old $1,965
+ Any Dependent Child 18+ $3,930
Partner Visa (onshore) for a Prospective Marriage Visa holder $1,310
Dependent Child under 18 years old $325
Dependent Child 18+ $660
These new visa application charges only apply to visa applications lodged after July 1st, 2021. Applications lodged before then won’t be affected.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
For de facto couples applying for a partner visa, it can be very useful to register your de facto relationship with a State government in Australia.
This is particularly the case if you have been in your de facto relationship for less than 12 months.
Most, but not all States and Territories of Australia allow couples to register their de facto relationship. The state of Western Australia does not.
Not yet divorced from your former partner?
Can you register if one or both of you is not yet divorced from your former partner?
Unfortunately, the answer is no. Neither of you must currently be married to be able to register your relationship.
Need to be in Australia to register?
Generally, only one of you needs to be living in the State at the time that you register your relationship in that State. The other partner can also be living in the State at the time you register your relationship, but they don’t have to be – they could be living inter-State or overseas. But, check the State’s particular requirements.
Is it expensive?
Not really. It’s in the vicinity of $150 to register a relationship – costs vary from State to State.
How long does it take?
It takes a minimum of one month form the date you lodge a valid application to register your relationship until registration is granted – this is known as the ‘cooling-off’ period.
However, some States at times have a backlog of applications and because of this, it can at times take significantly longer than a month.
Do we need to register our relationship before we lodge the partner visa application?
Ideally, yes. However if that is not possible Immigration will accept a Relationship Registration certificate after the visa application is lodged and up until the date a decision is made on that visa application.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
The Form 888 is the Australian Immigration Department’s ‘Statutory Declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application’ form.
Form 888s are an important part of the evidence for Partner visa and Prospective Marriage visa applications.
How to use them
Firstly, it’s important that your witnesses use the most recent version of the Form 888 – the form is updated from time to time.
You can download the most recent version of the Form 888 here.
I recommend that you obtain a minimum of six completed Form 888s – if you can get more than that, then good.
Family, friends, colleauges, who know you both, are all eligible to complete Form 888s. Form 888s from each partner’s parents are useful (as long as they are supportive of your relationship).
But, don’t restrict yourself to just using family – it’s advisable to use some friends for Form 888s also.
At least two of the people that complete Form 888s for you need to be Australian citizens or Australian permanent residents. The rest of the people can be, but don’t have to be.
Both people that are in Australia and people that are outside Australia can complete form 888s. If the person does not speak English then their answers to questions 3, 4 and 5 of the Form 888 will need to be translated into English by a qualified translator, and the translation attached to the form 888.
Some things to keep in mind.
The person completing the form 888 should not refer to you as being each other’s ‘boyfriend’ or ‘girlfriend’
You are applying for a Prospective Marriage visa because you are fiance(e)s – not merely ‘boyfriend’ or ‘girlfriend’.
Similarly, you are applying for a Partner visa either because you are married – ‘husband’ or ‘wife’, or because you are in a de facto relationship – ‘partners’ or ‘de facto partners’.
The words used are important. If your Form 888 witnesses write that you are ‘boyfriend’ or ‘girlfriend’ – even though they know that your relationship is more than that – then it can be harder to convince the immigration department that you are actually fiance(e)s or married or de facto partners.
People have usually never completed a Form 888 before. If possible, get the person to send you a copy of what they intend to write before they put it into the Form 888 and sign it.
Everything they write must be true and accurate, but sometimes they misunderstand the questions, or use the wrong words or incorrect dates, or, sometimes they forget to say they attended your wedding!
You may be able to gently guide them, or refresh their memories – keeping in mind that everything must be true. Form 888s are a legal document.
Don’t write people’s answers to the questions in the Form 888 for them. Their answers neeed to be written by the person themselves and in the person’s own words.
It’s fine to remind them if they have forgotten something or misunderstood something – but at the end of the day it is the person themselves that needs to write their own answers.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
These are difficult times for Prospective Marriage Visa applicants due to the Covid 19 travel restrictions into Australia for fiance(e)s. Therefore, some couples are examining all options for getting their fiance(e) partner to Australia.
The strategy
One option that is difficult, but may be available to some, is for the Australian sponsor and their partner to marry before they get a decision on their (already lodged) Prospective Marriage visa application.
After legally marrying and advising the immigration department of the marriage, the Prospective Marriage visa application can be converted by the immigration department to a subclass 309/100 offshore partner visa application. No further visa application charge is payable. The undecided Prospective Marriage visa application is also withdrawn.
A Prospective Marriage visa application that hasn’t been finalised can be converted to an offshore partner visa application on the basis of a marriage, but not on the basis of being in a de facto relationship.
The advantages
The potential advantage of this ‘conversion’ strategy is that once the subclass 309 temporary partner visa is granted, the visa holder (currently) does not need to obtain an Australian travel exemption to travel to Australia on their temporary partner visa.
The situation is different for Prospective Marriage visa holders who (currently) do need to obtain an Australian travel exemption to travel to Australia on their Prospective Marriage visa – and those exemptions are extremely difficult for Prospective Marriage visa holders to get.
The challenges
Converting an undecided Prospective Marriage visa application to an offshore partner visa application by marrying, has risks. For example, the Prospective marriage visa application could be finalised after your marriage, but before the immigration department is informed of your marriage – ending up in a complete mess. The immigration deparyment could decide that, even though married, the couple do not meet their definition of ‘spouses’.
Of course one of the biggest challenges with this strategy currently is – how does the couple physically get together to marry during these Covid times?
Australians currently have to apply for permission to leave Australia and have an intention to leave Australia for 3 months or more. Even if the Australian partner is in a position to be able to leave Australia for a lengthy period, and gains permission to do so – flights to and from Australia are expensive and scarce at the moment. The cost of the mandatory quarantine on re-entering Australia is also significant.
Additionally, some couples who could marry in Australia, are not legally able to marry in some countries – for example, same-sex couples can’t marry in some countries.
Overall, this is not a strategy to be undertaken lightly and without getting detailed and good advice first. Whilst it could be a possible strategy for some, at the moment it simply may not be a realistic strategy for most unfortunately.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
The Australian government has recently made some positive changes to the Legislation that governs Prospective Marriage visas. These changes commenced on February 27th, 2021.
The first change is that Prospective Marriage visas will be able to be granted to visa applicants that are outside Australia at the time of visa grant, or who are inside Australia at the time of visa grant.
Previously, the visa applicant had to be outside Australia at the time of the Prospective Marriage visa grant – the visa could not previously be granted to the applicant if they were inside Australia.
(This change actually applies to a range of different visas that could previously only be granted to applicants when they were outside Australia).
The second change is that the validity period of Prospective Marriage Visas that are granted after February 27th, 2021, can be in the range of 9 to 15 months. Previously, the validity period was fixed at 9 months.
The validity period is the period of time that the visa is valid for – the period of time that the Prospective Marriage visa holder has to come to Australia, marry, and lodge a partner visa application.
This increase in the validity period from 9 months to 15 months isn’t guaranteed – the new legislation allows the validity period to be up to 15 months, but it doesn’t have to be 15 months – it must however be at least 9 months.
The Explanatory Statement that accompanies the new legislation notes that the validity period granted will depend on the ‘circumstances of the individual’.
As a result of these chages we have recently seen Prospective Marriage visas being granted again.
A Prospective Marriage visa granted to a client last week had a validity period of 15 months from the date of visa grant and a ‘must make first entry to Australia’ date, 12 months from the date of visa grant.
My colleagues are reporting that Immigration have recently stated that they will no longer be granting requests from visa applicants to postpone Prospective Marriage visa grants, due to the new longer validity period of 15 months potentially. Immigration will proceed to a decision when the application is assessed and the visa grant requirements are met.
After visa grant, the next challenge for most applicants will be getting to Australia on their Prospective Marriage visa, before it expires.
I note that the Australian Prime Minister said this on March 11th, 2021:
The Prime Minister says he is hopeful Australia’s international border might re-open by the end of October, although he warns that is not yet confirmed.
“We haven’t made any firm decision on these things but… that’s our hope and that’s our expectation,” he said.
“But I’ve learnt all through the pandemic, you don’t get too far ahead of yourselves.”
Fingers crossed – let’s hope so.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall. Solicitor & Registered Migration Agent.
The government has announced that from 27 February 2021 the following visas will be able to be granted while the applicant is in Australia, even though these visas usually require the applicant to travel offshore for grant of their visa:
Partner (subclass 309) visa
Prospective Marriage (subclass 300) visa
Child (subclass 101) visa
Adoption (subclass 102) visa
Dependent Child (subclass 445) visa
So, due to the Covid situation and the current difficulties in leaving and returning to Australia, these visas will temporarily be able to granted whilst the applicant is inside or outside Australia.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall. Solicitor & Registered Migration Agent.
This information is correct at February 16th, 2021. But, keep in mind that immigration law changes from time to time.
Posted in Partner Visa Tips | Comments Off on Grant in Australia of offshore Partner and Prospective Marriage visas – the commencement date has been announced.
Normally, applicants for offshore Partner visas (subclass 309) and Prospective Marriage visas (subclass 300) must be outside of Australia when their visa is granted.
If the person is in Australia (on a visitor visa for example), when the department is ready to grant the visa, the department will contact them and ask them to leave Australia for the grant of their subclass 309 or 300 visa.
They can then travel back to Australia on their subclass 309 or 300 visa.
Currently, due to the Covid-19 situation, it is very difficult for people to travel outside of Australia for the grant of their visa.
Fortunately, the government announced on November 30th, 2020, that for some family visas that would normally need the applicant to be outside of Australia for grant of the visa, the visa would be able to granted whilst the applicant was inside or outside Australia.
This information is correct at January 12th, 2021. But, keep in mind that immigration law changes from time to time.
Posted in Partner Visa Tips | Comments Off on Offhore Partner visas and Prospective Marriage visas able to be granted to applicants in Australia – temporarily.
The Immigration Department has announced that it has extended the 9-month validity period of Prospective Marriage (subclass 300) visas, for some Prospective Marriage visa holders and for some former visa holders.
To be eligible for the extension:
If the subclass 300 visa holder (or former subclass 300 visa holder) was outside Australia on 10 December 2020, and their subclass 300 visa was in effect (active) at any time during the period from 6 October 2020 to 10 December 2020, the duration of their subclass 300 (Prospective Marriage) visa is extended to 31 March 2022.
This is a significant extension of subclass 300 visas that otherwise expire nine months after the date of grant. The announcment acknowledges the impact of COVID-19 travel restrictions on Prospective Marriage visa holders entering Australia.
This announcement is very good news for offshore Prospective Marriage visa holders who have been unable to enter Australia during the 9-month validity period of their visa (generally due to COVID travel restrictions).
Has the validity period of your subclass 300 visa been extended? – you can check on VEVO.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall. Solicitor & Registered Migration Agent.
The Immigration Department has today announced that it will not require certain family visa subclass applicants to be offshore (outside Australia) for grant of their visas – from early 2021.
The announcement is that:
Some categories of visa require applicants to be outside of Australia at the time the visa is granted. The Department is aware that the travel restrictions and limitations associated with COVID-19 are affecting visa applicants, particularly applicants for family visas who have come to Australia.
It is intended that changes will be implemented in early 2021 that would allow certain family visas, which have been applied for outside Australia, to be granted while the visa applicant is in Australia. This temporary concession will be for people who are in Australia and are not able to travel offshore to be granted the visa due to COVID-19 related border closures.
The concession will apply to certain applicants for the following Family visa subclasses:
Child (subclass 101) visa
Adoption (subclass 102) visa
Dependent Child (subclass 445) visa
Prospective Marriage (subclass 300) visa
Partner (subclass 309) visa
This announcement is good news for offshore partner visa and prospective marriage visa applicants who are currently in Australia on another visa, such as a visitor visa.
Previously, applicants had to leave Australia so that their offshore partner visa or prospective marriage visa could be granted to them – which was very difficult to do in COVID times.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall. Solicitor & Registered Migration Agent.
This information is correct at November 29th, 2020. But, keep in mind that immigration law changes from time to time.
Posted in Partner Visa Tips | Comments Off on From early 2021, offshore partner visas and prospective marriage visas will be able to be granted to applicants who are in Australia.
As some readers will be aware, for a long time now the immigration department has been planning to implement a requirement that partner visa sponsors be ‘pre-approved’ before the partner visa applicant can lodge their partner visa application.
For a couple of years now, we have known that this ‘pre-approval’ requirement is coming – we just haven’t known when.
The immigration department have now finally provided some guidance on when the sponsor pre-approval commence will commence – it’s November 2021.
What does that mean for potential partner visa sponsors and applicants?
Well, if you intend lodging an offshore (from outside Australia) partner visa application, it won’t necessarily affect you much.
However, if you intend lodging an onshore (from inside Australia) partner visa application, you could be adversely affected by this new requirement from November 2021.
The reason for that is that we don’t yet know how long the pre-approval of sponsors process will take – it could be weeks, it could be months – and it’s more likely to be months.
Until the sponsor is pre-approved the partner visa applicant won’t be able to lodge their partner visa application. If the partner visa has a temporary visa (such as a visitor visa or a student visa) that expires soon – the time that it will take to pre-approve their partner visa sponsor could be a problem. Their temporary visa could expire before their sponsor is pre-approved.
If the partner visa applicant has a long time left on their temporary visa – say, 6 months or more, then it’s potentially less of a problem.
What to do? Well it’s best to think twice before rushing in to lodge a weak partner visa application just to avoid the commencement of pre-approval of sponsors in November 2021.
Lodging a weak application is rarely a good option. There may sometimes be some short-term advantage in that, but it can come at the cost of significant long-term disadvantage. A refused partner visa application is best avoided.
From November 2021 we will start to get a good idea of how long the sponsor pre-approval process takes. The process may be able to be speeded up by lodging a ‘decision-ready’ sponsor pre-approval application – with all necessary police checks attached, for example.
Feel free to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards.
Ross McDougall. Solicitor & Registered Migration Agent.
In the Federal government’s budget which was delivered on October 6th, 2020, numerous planned changes to partner visas were announced – some positive, some not so positive.
One of the most controversial planned changes announced was a new requirement for partner visa applicants and their sponsor (if an Australian permanent resident but not a citizen) to have either functional English language ability, or make a genuine attempt to learn English. This new requirement is planned to be introduced for partner visa applications lodged from mid-2021.
There was very little detail about this planned English language requirement in the budget documents.
However, Acting Immigration Minister Alan Tudge provided some further details on October 8th, 2020.
He said that: “What this will mean is that we will require an applicant and a sponsor to have met functional level English or to have at least made reasonable efforts to learn English. And, by reasonable efforts we mean for most people that would be doing about 500 hours of free English language classes.”
There has been a significant outcry about this planned English language requirement for partner visa applicants.
Accordingly, it is quite possible that this proposal will be watered-down before it’s planned introduction in mid-2021.
We’ll be watching closely.
Feel freee to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards. Ross McDougall. Solicitor & Registered Migration Agent.
We’re seeing that Covid -19 is definitely affecting the current processing times for lodged Partner visa and Prospective Marriage visa applications – sometimes in unexpected ways.
Prospective Marriage visa applications
Immigration is still accepting applications for Prospective Marriage Visas (subclass 300).
However, the processing of Prospective Marriage visa applications appears to have been suspended currently.
The suspension of processing is not necessarily a bad thing at the moment. This is because Prospective Marriage Visa holders are currently not allowed to enter Australia – and, their visa expiry date is coming ever nearer. That’s a problem without an answer at the moment.
Partner Visa applications – onshore and offshore (the temporary visa stage – subclasses 820 and 309)
Immigration is still accepting applications for Partner Visas – onshore and offshore.
The processing of temporary partner visa applications is continuing. However, delays are being experienced – particularly with offshore partner visa applications. The closure of many of Australian immigration’s overseas offices due to Covid-19 would be contributing to the delays. Most of the overseas offices appear to have re-opened now.
Partner Visa applications – onshore and offshore (the permanent visa stage – subclasses 801 and 100)
The processing of permanent partner visa applications is continuing.
We have seen some very quick grants of permanent partner visas that have been lodged recently – some within a month or two of lodging all of the forms, documents and evidence.
However, some permanent partner visa applications (lodged pre Covid – 19) are still waiting for a decision – even though they have been ‘decision-ready’ for a year or more.
What to conclude from this? – Immigration appears not to be processing permanent partner visa applications in the order they receive them.
Whilst that’s potentially good for applicants who have lodged recently, it’s unfair for other applicants who lodged much earlier.
Overall, it makes no sense.
Feel freee to contact me if you would like to book a consultation for more information about anything mentioned here.
Regards. Ross McDougall. Solicitor & Registered Migration Agent.
The ever increasing average processing time for partner visa applicants is causing significant hardship for many couples.
The situation is particulalry difficult when the couple are physically separated – often the sponsor is in Australia and their partner is in another country.
Two recent news articles highlight this unacceptable situation of delay, and its impact.
You can find the articles by following these links:
For de facto couples who have not lived together as a de facto couple for a year or more at the time they lodge their partner visa application, registering their relationship with the State Government can strengthen their application.
The South Australian Relationship Registration Residency requirement
The requirements for registering a relationship differ slightly from Australian State to State.
Some States require both of the couple to live in the State when they register their relationship. However, South Australia does not.
The South Australian requirement is that at least one of the couple must live in South Australia.
Why is this important?
It is important because it can be useful for de facto couples who want to register their relationship to strengthen their partner visa application, but only one of the couple is currently living in South Australia.
The other of the de facto couple could, for example, be living overseas and be lodging an offshore partner visa application based on their de facto relationship.
Some points to keep in mind:
Your relationship can’t be registered if you or your partner are:
married
already in a registered relationship
in a relationship as a couple with another person
related by family
younger than 18 years old.
Couples may apply for registration irrespective of their sex or gender identity.
For the purposes of strengthening a partner visa application, couples can register their relationship right up until the date the Immigration department makes a decion on their partner visa application – the relationship doesn’t necessarily have to have been registered at the date the partner visa application was lodged.
Feel free to contact me to arrange a consultation if you would like to discuss this in more detail.
Regards. Ross McDougall. Solicitor & Registered Migration Agent.
This information is correct at August 7th, 2020. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
Posted in Partner Visa Tips | Comments Off on Need to live in South Australia to register your relationship there? – yes and no.
Yes, they do. It’s not common, but from time to time immigration officers will visit the home of partner visa applicants and/or relatives of partner visa applicants, in Australia or overseas.
For example, the parents of a partner visa applicant may be visited at their home and interviewed by Australian immigration officers about their knowledge of their son’s/daughter’s relationship and partner visa application.
They could also be asked about the contents of any form 888s and other documents they may have provided for the partner visa application.
How likely is this to occur?
Not very. However the chances of it occurring increase significantly if the immigration department has doubts about the genuine nature of the partner visa applicant’s relationship and visa application.
Will there be advance notice from the immigration department of a planned site visit?
Possibly, but there is no guarantee that advance notice will be given.
Should we be concerned about this?
As long as your relationship and partner visa application are genuine, you should not be overly concerned. In fact, it can be an opportunity for the genuine nature of your relationship to be confirmed by others that are being visited and interviewed.
Feel free to contact me to arrange a consultation if you would like to discuss this in more detail.
Regards. Ross McDougall. Solicitor & Registered Migration Agent.
This information is correct at July 8th, 2020. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
Posted in Partner Visa Tips | Comments Off on Partner visa applications and ‘site visits’.
This is a question that I often discuss in my first meeting with clients.
Generally, couples want to lodge their partner visa application as soon as possible. That’s understandable – it’s a very long processing queue that the application will join. Couples want to get their application into that queue sooner rather than later.
However, I recommend that getting the partner visa application lodged quickly should not be the primary consideration.
The primary consideration, in my mind, should always be when to lodge the application tomaximise the application’s prospects for success?
Generally, the longer a couple wait and the longer they are together before lodging a partner visa application, the stronger the application will be.
Offshore Applicants
If the visa applicant is lodging the visa application from outside Australia (sublclass 309/100), waiting to strengthen the application before lodging it – whilst that can be frustrating – is usually relatively straightforward.
Onshore Applicants
If the visa applicant intends to lodge the partner visa application from inside Australia (subclass 820/801), the situation can be a bit more complex.
When lodging the partner visa application from inside Australia the visa applicant must hold a valid visa (for example, a tourist, student or temporary work visa) at the time they lodge the partner visa application (there are some complicated exceptions to this – that are best avoided).
If a person has, for example, a temporary work visa that expires in 12 months’ time, they could potentially lodge the partner visa application in Australia at any time in the next 12 months.
When the partner visa application is lodged the visa applicant will be granted a Bridging Visa A (BVA) that has unlimited work rights – excellent!
However, whilst the BVA is granted at the date of application for the partner visa, the BVA remains inactive until the applicant’s current temporary visa expires. Then, and only then, the BVA automatically activates.
So, lodging a partner visa application early doesn’t mean that the applicant will get the benefits of the BVA (the unrestricted work rights) earlier.
Irrespective of whether the applicant lodges the partner visa whilst they have 12 month’s validity left on their temporary visa, or, 3 months’ validity left – the BVA won’t commence until the temporary visa expires.
However, don’t leave applying too late
Occasionally, people have been known to leave it until a day or so before their current temporary visa expires to lodge their partner visa application in Australia.
Often this is because they may be in a relatively new relationship and they want to maximise their time together, and the amount of relationship evidence they have, before applying for the partner visa.
It’s usually a good idea to wait a bit and maximise the evidence, but a bad idea to wait until the last minute to apply.
Things can, and sometimes do, go wrong when lodging an application. Immigration’s online visa application software can have problems, credit cards can be declined because it is too large a transaction, etc. etc.
The upshot of these types of problems can be that a temporary visa holder’s visa can expire before the partner visa application can be lodged – that creates a problem that is best avoided.
So, delaying lodging a partner visa application to build up evidence and time together can be very useful in strengthening an application that is not yet as strong as it could be.
But, just don’t run the risk of leaving it to the last minute.
Feel free to contact me to arrange a consultation if you would like to discuss this in more detail.
Regards. Ross McDougall. Solicitor & Registered Migration Agent.
This information is correct at May 27th, 2020. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
Posted in Partner Visa Tips | Comments Off on Timing the lodgement of a partner visa application.
Waiting for the grant of your Prospective Marriage Visa may be best at the moment.
In fact, if you are in the processing queue you may not actually want your Prospective Marriage visa to be granted at the moment.
The reason for this is that Prospective Marriage visas last for 9 months – and Prospective Marriage visa holders can’t travel to Australia at the moment.
A Prospective Marriage visa holder needs to enter Australia, marry, and lodge a partner visa application, all within the 9 months.
At the end of 9 months from the date they are granted, Prospective Marriage visas expire.
If the Prospective Marriage visa holder isn’t able to enter Australia within the 9 month period from when the visa is granted – say, because they can’t enter due to coronavirus travel restrictions on entering Australia – the visa expires.
At the moment the immigration department is not extending that 9 month period – even during this time of coronavirus.
The Upshot of this.
The upshot of this is that we are currently seeing some Prospective Marriage visa holders who, say, may have been granted their visa 4 or 5 months ago but still haven’t entered Australia on the visa – and now can’t currently enter Australia due to coronavirus.
The risk for them is that their Prospective Marriage visa will expire before they can enter Australia – due to coronavirus travel restrictions into Australia.
That’s a bad outcome for them unfortunately – they would then need to lodge a new Prospective Marriage visa application.
Will the government fix this?
Hopefully, yes.
The Migration Institute of Australia has brought this problem to the government’s attention.
When, and if, the government will do something about this current problem for Prospective Marriage visa holders who are currently outside Australia, is not known at the moment.
Let’s hope so.
I hope this information is of assistance. Take care out there!
Best wishes, Ross McDougall. Solicitor & Registered Migration Agent.
This information is correct at May 1st, 2020. But, keep in mind that the situation is changing and being updated regularly.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
Posted in Partner Visa Tips | Comments Off on Prospective Marriage visas and the Covid-19 situation
The Migration Institute of Australia supplied the following information on March 16th, 2020, regarding Coronavirus and its potential affect on visa applicants and visa holders:
Travel Bans
The current travel bans for those arriving from Mainland China, Iran, South Korea and Italy remain in place.
As of midnight 15 March 2020, all those arriving in Australia are required to self-isolate for 14 days. Some states have already introduced heavy penalties for those who do not comply.
Australian citizens and permanent residents
Australian citizens and permanent residents are not prevented from entering Australia at this stage.
Those arriving in Australia will also be required to self-isolate for 14 days.
Immediate family – spouses, minor dependants or legal guardians only – holding permanent visas may travel to Australia, however, will be required to follow self-isolation guidelines.
Partners and immediate families of Australian citizens and permanent residents holding temporary visas
Partners and immediate families of Australian citizens and permanent residents – spouses, minor dependants or legal guardians only – holding temporary visas are being dealt with on a case by case basis by the Department.
Before attempting to travel contact should be made with the relevant post using the Australian Immigration Enquiry Form provided on the Department’s website.
Visa holders offshore required to enter Australia by a specified date
Visa holders required to enter Australia by a specified date and prevented from doing so by the travel restrictions should contact the section of the Department that issued the visa and request an extension to the entry date.
Bridging Visa B holders offshore
Bridging Visa B holders offshore unable to return before expiry date may consider applying for a visitor visa to return to Australia. Bridging Visas A should then be applied for again when onshore.
I hope this information is of assistance.
Take care out there!
Best wishes, Ross McDougall. Solicitor & Registered Migration Agent.
This information is correct at March 16th, 2020. But, keep in mind that the situation is changing and being updated regularly.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
Posted in Partner Visa Tips | Comments Off on Partner visa holders, applicants, and Coronavirus – as at March 16th, 2020.
This information is correct at February 17th, 2020. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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Partner visa applicants need to be sponsored by their partner.
The sponsoring partner needs to be an Australian Citizen or an Australian Permanent Resident or an Eligible New Zealand Citizen.
Can the sponsor be living outside Australia and sponsor their partner?
If the sponsor is an Australian citizen, the answer is yes. It does not matter if the Australian citizen sponsor is living in Australia or not – they can still be approved as a sponsor.
The situation is more complex for potential sponsors who are Australian Permanent Residents. This is because there is a ‘Usually Resident’ (in Australia) requirement for Permanent Resident sponsors. There is no such requirement for Australian citizen sponsors.
The ‘Usually Resident’ requirement.
Guidance on what ‘Usually Resident’ means, and how the Immigration department interprets the ‘Usually Resident’ requirement, is available in an Immigration Department policy document.
This is a relevant extract from that policy document:
Assessing usually resident
As ‘usually resident’ is not defined in the Act or Regulations, it is taken to have its common or dictionary meaning. That common meaning has been the subject of a number of judicial decisions.
In 2003, the Full Federal Court considered ‘usual residence’ in Scargill v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC III (2 June 2003) (Scargill). Scargill addressed the specific phrase ‘usually resident’ as it applied in the definition of ‘remaining relative’. The court in Scargill looked to other cases that used similar phrases, such as Kotaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) HCA 13; (1941) 64 CLR 241. Scargill found a person must meet two essential elements to be considered usually resident in a particular place:
a physical presence in a particular place (as indicated by where a person maintains a home, eats and sleeps, even if this is in hotels or a yacht) and
an intention to treat that place as a home for at least the time being but not necessarily forever.
Although:
regulation 1.03 requires a decision maker to consider whether a person purporting to be a permanent resident is in fact usually resident in Australia
and
case law requires that in doing so the decision maker considers the two elements of physical presence and intent
it is a matter for the decision maker to determine, based on the facts of the case, if a person is usually resident in and a permanent resident of Australia.
The evidence for being usually resident somewhere may be seen in a variety of factors, including:
maintaining a home in a particular place
going to work there
owning property, business or other interests there
having family and other ties in the place.
Absence from a place at a particular time does not automatically mean it is not a person’s usual residence, as the person may have already established usual residence there in circumstances where their absence is still consistent with having usual residence in that place.
It follows that a person who holds a permanent visa but has not activated that visa by entering Australia may, depending on the facts of the case, be considered usually resident if they have the intention of making Australia their home, had previously lawfully entered Australia (even if only on a temporary visa at that stage) and established the type of links that are indicative of usual residence
A person who has never entered Australia could not be found to be usually resident in Australia as they have never established their physical presence in Australia.
Under policy, it may be accepted that the sponsor is usually resident in Australia in the absence of information that suggests otherwise if the sponsor:
holds a permanent visa and
is residing in or has previously resided in Australia.
So, as you can see from the Immigration department’s policy, above, there are some scenarios where an Australian Permanent Resident may be considered not to be ‘Usually Resident’ in Australia, and therefore not eligible to be a partner visa sponsor.
If in doubt about your potential eligibility as a sponsor, I recommend that you get professional advice.
Feel free to contact me to arrange a consultation if you need further information about this. Regards.
Ross McDougall. Solicitor & Registered Migration Agent.
This information is correct at January 15th, 2020. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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The immigration department’s statistical report on the 2018-19 Migration Program was published this month.
Unfortunately, the report shows that the Partner visa application pipeline (lodged partner visa applications waiting to be processed) had reached almost 90,000 applications – as at June 2019.
The number of applications waiting in the pipeline is likely to increase further in 2019-20.
39,918 partner visas were issued in 2018-19 — around the same level as in 2017-18 but around 8,000 less than in 2016-17.
With an increase in partner visa applications from 57,144 in 2017-18 to 61,884 in 2018-19, the pipeline of partner visa applications continued to grow to almost 90,000.
With less than 40,000 partner visa places available in 2019-20, this pipeline of applications awaiting processing will seemingly grow further. The result of this is ever-increasing average processing times.
The chart, below, illustrates the current mismatch between demand for partner visas, and the available supply.
Note: This is a summary of an article written by Abul Rizvi and published on the Independent Australia website on 8/12/2019.
Feel free to contact me to arrange a consultation if you need further information about this.
Regards. Ross McDougall. Solicitor & Registered Migration Agent.
This information is correct at December 9th, 2019. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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This is what the immigration department publishes in regard to priority processing:
Compelling and compassionate circumstances
A Partner or Child visa application might be prioritised where you can demonstrate compelling and compassionate circumstances. You will need to make a request for priority processing with the visa office where your application is being processed and provide evidence to support your claims.
There is no guarantee that your application will be given a higher priority as other applicants might have equally or more compelling and compassionate circumstances.
Is priority processing likely?
No, unfortunately it isn’t.
However, it could be more likely for an offshore temporary partner visa application (subclass 309) than for an onshore temporary partner visa application (subclass 820).
The reason for this is that onshore partner visa applicants are generally together with their partner in Australia during the processing of their temporary partner visa application.
When they apply for the onshore partner visa, and provided they hold a substantive visa at that time, they will be granted a Bridging Visa A (BVA) that, after it activates, allows them to stay in Australia indefinitely until they receive the decision on their onshore temporary partner visa application.
When active, their BVA also allows them to work in Australia without restrictions. They can also access the Australian government’s medical insurance scheme, Medicare, and can apply for a Brdiging Visa B if they wish to travel outside Australia for a short period of time.
If we compare the situation of an onshore partner visa applicant with an offshore temporary partner visa applicant, obvious differences are apparent.
Offshore partner visa applicants are commonly separated from their Australian partner during the processing of their partner visa application – the visa applicant is often in their home country and their partner is usually, but not always, in Australia.
There is no BVA granted to offshore temporary partner visa applicants and no right to be in Australia or to work in Australia during processing of their temporary partner visa application.
They may, or may not, be able to obatin a visitor visa to visit their partner in Australia during processing of their temporary partner visa application, but there is no guarantee a visitor visa will be granted. If a visitor visa is granted, it will not have the right to work in Australia.
However, all of the above hardships will unfortunately almost certainly not be ‘Compelling and Compassionate’ enough to get priority processing of an offshore partner visa application – as these circumstances are common to most offshore applicants.
Compelling and Compassionate Circumstances
So, proving ‘Compelling and Compassionate Circumstances’ may be easier for offshore, rather than onshore, partner visa applicants – it all depends on the circumstances.
Proving ‘Compelling and Compassionate Circumstances’ is a high bar, and is always very difficult.
Feel free to contact me to arrange a consultation if you need further information about this. Regards.
Ross McDougall. Solicitor & Registered migration Agent.
This information is correct at November 18th, 2019. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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Minimum Income required for sponsors and applicants?
I’m often asked if there is a minimum income level that partner visa applicants and their Australian citizen or permanent resident sponsor need to have in order to be approved as the visa applicant or as the sponsor of their partner’s partner visa application.
The good news is that the answer is no, there is not.
Of course it doesn’t hurt if the visa applicant and the sponsor have a good income – applying for a partner visa is not cheap.
However, partner visa applicants who are not working and sponors who may be receiving Australian social security benefits – because, for example, they may be unemployed or have a disablity – can be approved as partner visa applicants and sponsors.
What the partner visa sponsorship applicant agrees to
Some of the declarations the partner visa sponsorship applicant agrees to in their online application form include:
The sponsor agrees:
To provide information and advice to help the person(s) being sponsored settle in Australia.
To ensure that adequate accommodation is available to them on arrival in Australia or, if necessary, to provide accommodation for up to 2 years from arrival in Australia, or the 2 years following grant of partner’s visa if partner is applying in Australia.
To provide support as required enabling them to attend appropriate English language courses
As you can see, there is no stated requirement that the sponsor provide financial support or assistance (other than ensuring accommodation is available) to the applicant – although of course it is common for the sponsor to provide financial support to their partner. However, immigration don’t require the sponsor to undertake to do so.
What the partner visa applicant agrees to
Some of the declarations the partner visa applicant agrees to in their online application form include:
Understand that, if granted the partner visa:
There is a two-year wait for social security payments, including unemployment benefits, for most newly arrived migrants
The applicants will need to have enough money, even if unemployed, to support themselves for the first two years and if they run out of money or fail to get a job in that period, that would not be sufficient reason to make them eligible for social security income support payments
Notwithstanding the above declaration, I have never seen the immigration department request that the partner visa applicant show that they have enough money to support themselves for two years – it could happen, but I’ve never seen it. Note that the wording used is ‘will need to have’ and not ‘must have’.
Some partner visa applicants would have funds to support themselves for two years, but most wouldn’t. At the moment, that’s not necessarily a bar to obtaining a partner visa.
Feel free to contact me for a consultation if you need further information about this. Regards.
Ross McDougall. Solicitor & Registered Migration Agent.
This information is correct at October 12th, 2019. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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The Migration Institute of Australia (MIA) has provided the following information regarding partner visas that they received from the Immigration Department at a recent bi-lateral meeting between the MIA and senior department officials.
Current Partner visa processing pipeline
1st Stage (temporary) partner visa applications – 82,000 applications are in the processing pipeline.
2nd Stage (permanent) partner visa applications – 156,000 applications are in the processing pipeline.
The Department confirmed that they are doing everything possible to facilitate the smooth transition to permanent residency for partner visa applicants, given the long processing times of the partner visas.
The Migration program for 2019-20 allocates a total of 39,799 visas for the partner visa stream – far less than the number of partner visa applications in the processing pipeline – hence the long processing delays.
What happens if the processing time for the temporary partner visa is more than 2 years?
Partner visa applicants are eligible to be considered for the permanent partner visa 2 years after they applied for the temporary and permanent partner visas.
In the past, the temporary partner visa would have been received well before the 2-year point – that’s not always the case anymore unfortunately.
The immigration department lists current average processing times for onshore apartner visa applications as being 21 to 28 months.
So, it’s possible that a partner visa applicant can become eligible to be considered for the permanent partner visa, before the temporary partner visa is granted.
An applicant in that situation (being at the 2-year point before grant of the temporary visa), could potentially contact the Immigration department at the two-year point and requesting that they be considered for grant of the permanent partner visa immediately after the temporary partner visa is granted.
The immigration department doesn’t have to do this – but many applicants would have everything to gain, and little to lose, by requesting that they do so.
Feel free to contact me for a consultation if you need further information about this.
Regards.
Ross McDougall. Solicitor & Registered Migration Agent.
This information is correct at September 12th, 2019. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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Police checks are required for all partner visa and prospective marraige visa applicants as part of the application process.
They are also required for sponsors of partner visa and prospective marriage visa applications.
A police check is required from every country the applicant or sponsor has spent a year or more in (cumulatively) in the last ten years.
Every applicant and sponsor needs at least one police check – many applicants and sponsors need police checks from more than one country.
Australian Police Checks
All time spent in a country in the last ten years (cumulatively – that is, when it is ‘added up’) counts in determining whether or not you have spent a year in a country. So time in a country, living, working, or just visiting there all counts.
It’s relatively easy to obtain police checks from some countries – Australia for example – you apply online, pay the $42 fee and receive the police check by mail in a few weeks’ time if you are in Australia.
If you are not in Australia you can still apply online for your Australian police check. However, I recommend that you consider getting your Australian police check posted to a friend or relative in Australia (you can stipulate the postal address on the application form). This avoids a potential long delay in you receiving the police check if you were to get it posted to you outside Australia.
There are many different types of police checks you can obtain in Australia form both State governments and from the Australian Federal Police.
However, only one type of Australian police check is accepted by the immigration department – information on this is available on the immigration department’s website.
What to do if it’s difficult or impossible to obtain a police check from a particular country?
In some countries it can be difficult to obtain a police check. For example, it can be difficult for people who are not Indonesian citizens (but who have spent a year, cumulatively, in Indonesia) to obtain a police check from Indonesia.
The first thing you should try to do is to obtain a police check from that “difficult” country. You should keep evidence that you have tried to obtain the police check – copies of emails, letters, etc.
Then, if after genuinely trying you have been unable to obtain the police check form that country, you could prepare and lodge a ‘Character’ Statutory Declaration with the Australian Immigration Department that explains why you can’t get the police check (attaching evidence that you have tried to obtain it), lists any convictions you may have in that country or states that you don’t have convictions in that country.
Immigration may then accept this Statutory Declaration in place of a police clearance from a particular country.
Feel free to contact me for a consultation if you need further information about this.
This information is correct at July 18th, 2019. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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It’s July 1st and as it does most years, the government has increased its visa application charges for most visa applications including partner and prospective marriage visa applications.
The increase in visa application charges for partner visa and prospective marriage visa applications is 7. 75%.
The new visa application charges that apply from July 1st, 2019, are
Partner Visa (lodged onshore or offshore) $7,715.00
Dependent Child under 18 years old $1,935.00
Dependent Child 18+ $3,860.00
Prospective Marriage Visa $7,715.00
Dependent Child under 18 years old $1,935.00
Dependent Child 18+ $3,860.00
Partner Visa (onshore) for a Prospective Marriage Visa holder $1,285.00
Dependent Child under 18 years old $320.00
Dependent Child 18+ $645.00
These new visa application charges only apply to visa applications lodged after July 1st, 2019. If you lodged your visa application before then, you won’t be affected.
Feel free to contact me for a consultation if you need further information about this.
This information is correct at July 2nd, 2019. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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It is not guaranteed or automatic that the immigration department will interview partner visa applicants and/or their sponsor. Many times, partner visas are granted to applicants who have not been interviewed – their application is decided solely ‘on the papers’ (on the evidence and documents submitted).
However, some other partner visa applicants – and sometimes also their sponsor – are interviewed.
What happens at an interview?
Interviews can be face-to-face at an immigration department office. Or, they can be by telephone. Telephone interviews are more common than face-to-face.
A potentially difficult thing with telephone interviews is that often they happen without notice or being scheduled. The applicant just receives a call from the immigration department on their telephone – it’s a ‘surprise’ interview about their partner visa application.
What are applicants asked at interview?
There is no ‘formula’ for what is asked at an interview – they are all a bit different. But, you could expect to be asked about your knowledge of your partner – in some detail.
The interview is designed to probe each person’s knowledge about the relationship and about his/her partner, to help the immigration department determine whether a relationship is genuine.
I can provide my clients with a sample list of some of the potential questions (around 100 example questions) that might be asked in an interview. They are then prepared when – and if – the immigration department calls.
My recommendation
Overall, I recommend that you don’t underestimate the interview process. Answer the questions fully and truthfully. If you don’t know the answer to a question then it’s best to say you don’t know. That’s much better than making up an answer to a question that you don’t know the answer to. Good luck!
Feel free to contact me for a consultation if you need further information about this.
This information is correct at June 17th, 2019. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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The Australian Government has recently advised that it has allocated 39,799 places for partner visas in the 2019/2020 financial year.
This is the same number of places that were allocated to partner visas in the current (2018/2019) financial year.
At the moment there is a backlog of approximately 80,000 partner visa applications (including prospective marriage visa applications) within the processing system.
As there will be no increase in partner visa places for the forthcoming financial year, and due to the current backlog of applications, it can be expected that the current long average processing times of approximately two years will continue.
This graph clearly illustrates the current situation, where demand for partner visas is outstripping supply:
With the processing pipeline backlog continuing to increase, average processing times may even increase further – the significant increase in the visa application charge to approximately $7,100 has not deterred many from applying for partner visas it seems.
The fair thing would be for more partner visa places to be allocated and processing of applications sped up to clear the backlog.
What can you do about this if you think the present situation is unfair? – contact your local Federal (not state) Member of Parliament to express your concern.
Feel free to contact me for a consultation if you need further information about this.
This information is correct at May 13th, 2019. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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All applicants for Australian partner visas need to complete – and pass – a medical examination.
Medical examinations are conducted by doctors that have been authorised by the Australian immigration department – your own doctor can’t conduct the medical examination for you.
There are Australian immigration department authorised doctors in most countries.
The results of the medical examination are valid for 12 months – in some situations this 12-month validity period can be extended for a further 6 months.
When can the validity period be extended?
Here is an excerpt from the immigration department’s internal policy with regard to this:
Visa processing officers can, in certain situations, extend the validity of an applicant’s health clearance. Visa processing officers should only be extending the validity of a health clearance in very exceptional circumstances. Such extensions should not be given automatically. This is because an applicant’s health condition may change over time, in particular where an applicant is residing in a higher TB risk country.
If the validity period of a health clearance can be extended, this extension can be granted for a maximum period of 6 months only.
Why is the validity period important?
It’s important because the processing period for partner visa applications has increased to 18 to 24 months on average. Theoretically, the results of a medical examination could expire before the decision on the visa application is received. This would mean that the visa applicant(s) would have to complete the medical examination again – and pay the cost of it again.
What are some options?
• Applicants could complete the medical straight after the visa application is lodged
Or,
• They could wait six months from when the visa application is lodged (or even wait until the Case officer that processing the application requests that they do the medical examination).
The advantage of doing the medical examination straight after the visa application is lodged is that the application then becomes ‘decision ready’ – the case officer can theoretically approve the application on the day they start processing the file.
The disadvantage of doing it straight after the visa application is lodged is that the application may not be processed within a year of completing the medical examination. In that case you may need to do the medical again and incur the cost of it again.
Some, but not all, applicants decide to do the medical examination straight after the visa application is lodged and run the risk of incurring the cost of having to do it again later. They do this in the hope that the visa application will potentially be processed more quickly – sometimes it is.
Feel free to contact me for a consultation if you need further information about this.
This information is correct at March 19th, 2019. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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If you are in a long-term marriage or de facto relationship at the time you apply for an Australian partner visa, you may be eligible to be granted the permanent partner visa immediately after you are granted the temporary partner visa.
That means that you don’t have to wait until two years after you apply for the partner visas to be processed for the permanent partner visa. It’s a great result, if you can get it.
What does the Immigration Department regard as a long-term relationship?
Basically, it’s three years, or two years if you have a child of the relationship at the time you apply for the partner visas.
At the time you apply for the partner visas you must have been married or in a de facto relationship (not just in a relationship) for at least these amounts of time. You must also be able to prove this.
Will the permanent visa definitely be granted without waiting?
Unfortunately, no. The authority for a Case Officer to grant the permanent partner visa immediately after the temporary partner visa for applicants in a long-term relationship is contained in Immigration Department policy, not in migration law.
This authority that Case officers have is known as a ‘non-compellable discretion’.
‘Non-compellable’ means that the Case Officer can’t be forced (by law) to do it. ‘Discretion’, means that they can choose to do it, or not – they don’t haveto immediately grant the permanent partner visa to an applicant that is in a long-term relationship.
What is Immigration’s usual practice?
In my experience, Case officers will usually grant the permanent partner visa immediately after the temporary partner visa to applicants that are in long-term relationships.
However, it’s possible that is my experience because when I’m representing an applicant who is in a long-term relationship I write to the Case Officer and point out to them Immigration’s policy for applicants in long-term relationships and request that the Case Officer exercise the discretion that is allowed to them under policy to grant the permanent as well as the temporary partner visa.
So far, that has always been successful.
So, if you are genuinely in a long-term marriage or de facto relationship at the time you apply for the partner visa, you have everything to gain, and little to lose by asking the Case Officer to grant the permanent as well as the temporary visas.
Feel free to contact me for a consultation if you need further information about this.
This information is correct at February 21st, 2019. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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Looking to the year ahead, I’m expecting to see the following changes, at a minimum, to the processing of partner visa applications.
Pre-approval of Australian partner visa sponsors to be required before the partner visa applicant can lodge a partner visa application. The legislation that introduces this was passed by the Australian parliament in late 2018. It hasn’t commenced yet. It must commence by June 2019. People in Australia on short-term visas that are expiring will be significantly affected and some may need to leave Australia and apply from outside Australia.
A higher number of applications for partner visas overall. Why? Because last year the migration intake to Australia was reduced by approximatley 40,000 places – mostly from the employer-sponsored and skilled visa categories. Many people who may previously have been eligible for employer-sponsored or skilled visas may now consider the possibilities of applying for a partner visa.
The current long processing times for partner visa applications will continue to be a challenge for applicants, and possibly get longer. For offshore partner visa applicants it’s currently taking on average 30 to 46 months to be processed for the temporary and permanent partner visas. For onshore partner visa applicants it’s currently taking on average 40 to 52 months to be processed for the temporary and permanent partner visas. The combined effects of pre-approval of sponsors and the potential for an increase in partner visa applicant numbers will almost inevitably result in an increase in the (already long) processing times.
What can potential partner visa applicants do about this? My recommendation is to lodge the most complete and highest quality partner visa application possible. Avoid ‘shortcuts’ and poor quality applications. Good quality applications are still being approved and sometimes quicker than the current average processing timeframes.
Yes, a refused application can be reviewed by the Adminstrative Appeals Tribunal (AAT), but you want to avoid that path by lodging a successful application initially. Current waiting times at the AAT for a case to be heard are now approaching two years from lodgement until hearing date – they have a huge backlog of cases (50,000+).
Feel free to contact me for a consultation if you need further information about this. Regards.
This information is correct at January 17th, 2019. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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Requirement for partner visa sponsors to be pre-approved is coming soon.
Some new partner visa legislation has recently passed through the Australian parliament and is now awaiting the Governor General’s assent to become law.
A significant effect of the new law will be to require pre-approval of Australian sponsors for partner visa applications and, probably, for prospective marriage visa applications, before the partner or prospective marriage visa application can be lodged.
What this means in practical terms is that partner visa applications (and probably prospective marriage visa applications) will not be able to be lodged until after the Australian partner’s visa sponsorship application has been lodged, processed and approved.
Currently, the Australian partner’s visa sponsorship application is lodged and processed afterthe partner or prospective marriage visa application has been lodged.
The new law will reverse that order of processing.
The final version of the Bill (new law) is not yet available. Once it is available, it will be possible to more accurately predict the effect of the new legislation.
However, the specific effect of the bill on visa applicants will not be fully known until the applicable changes to Migration regulations and policy are made. It is not currently known how far advanced the process of updating the regulations and policy is.
Who will be affected?
Of concern is the anticipated effect on those intending to lodge partner visa applications whilst onshore in Australia, especially those on visas with a relatively short validity period such as visitor visas; as processing of the Australian partner’s sponsorship application may take longer than the time that an intending partner visa applicant has left on their current visa.
The potential effect on partner visa or prospective marriage visa applicants who will lodge their visa application offshore (from outside Australia) is much less significant – as they are not in Australia in a ‘time-critical’ situation with an existing temporary Australian visa expiring.
Feel free to contact me for a consultation if you need further information about this. Regards.
This information is correct at December 6th, 2018. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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Partner visa application refused? You can generally appeal that refusal decision to the Administrative Appeals Tribunal (AAT).
The AAT will look closely at your partner visa application again and then make a new decision on your application. That new decision by the AAT could agree with the Immigration Department’s refusal decision (not good!) or disagree with the refusal decision and overturn it (good!).
The stages when partner visa applications can be refused
A partner visa application can potentially be refused at either:
the temporary partner visa stage – subclass 820 (application lodged onshore) or subclass 309 (application lodged offshore)
or
the permanent partner visa stage – subclass 801 (lodged onshore) or subclass 100 (lodged offshore)
In all refusals situations except for one, you can appeal a refusal decision to the AAT.
The one situation where you cannot appeal a refusal decision to the AAT is a refusal of a subclass 100 permanent partner visa application where the partner visa applicant was outside Australia at the time the subclass 100 refusal decicision was made. There is no right of appeal in this situation. That’s harsh.
How to avoid this
To avoid potentially finding yourself in this situation of a refusal of a subclass 100 visa application with no appeal right, if you are waiting for a decision on a subclass 100 application avoid travelling outside Australia until after you receive the decision.
That’s the safest option, and it ensures an appeal right if the subclass 100 application is refused.
Feel free to contact me for a consultation if you need further information about this. Cheers.
This information is correct at October 30th, 2018. But, keep in mind that immigration law changes from time to time.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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Partner visa application processing times have increased.
I’ve noticed in the last 6 to 9 months a substantial increase in the Immigration Department’s published average processing times for onshore and offshore partner visa applications and for Prospective Marriage Visa applications.
What are the published processing times?
The Immigration Department publishes online its current average processing times here
These average processing times are updated by the Department regularly.
As at today – October 1st, 2018 – the department’s average processing times for the following visa application types are:
Offshore temporary partner visa (subclass 309) – 13 to 17 months
Onshore temporary partner visa (subclass 820) – 20 to 25 months
Offshore Prospective marriage visa (subclass 300) – 13 to 17 months
The recent increase in average processing times for subclass 820 onshore partner visa applications has been particularly significant – it has almost doubled.
I suspect that a reason behind this may be the Immigration department’s possible preference for partner visa applicants to apply for a partner visa from offshore, rather than from onshore.
Even more curiously, the current average processing times for the permanent partner visa stage have also increased markedly to:
permanent partner visa processing stage applied offshore (subclass 100) – 17 to 23 months
permanent partner visa processing stage applied onshore (subclass 801) – 18 to 25 months
Are these average processing times accurate?
Well, they are averages. I’m finding that virtually all of our clients’ partner visa applications are processed more quickly than this – some much more quickly.
However, we do have a couple of client’s partner visa applications that are getting close to these average times.
Overall, there appears to be no logic to it. Partner visa applications no longer appear to be being processed by the department in chronological order (in the order that they are received).
Can the processing be speeded up?
Without a doubt the best thing to do to potentially streamline processing is to lodge a complete, and well-prepared partner visa application.
This reduces (and often eliminates) the need for the Case Officer processing the application to request more evidence or documents from the visa applicant or the sponsor – which all takes time and creates delays.
RPM Lawyers only lodges complete and well-prepared partner visa applications.
Therefore, our clients’ applications are normally always processed quicker than the average processing times. But please note, we can’t, and we don’t guarantee that – we just know that it normally happens.
Feel free to contact me for a consultation if you need further information about this. Cheers.
Ross McDougall
Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is current at October 1st, 2018 – note that immigration law changes regularly.
Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
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A 15% drop in Partner Visas granted in the last year
‘The Australian’ newspaper reported on July 13th, 2018, that Australia’s annual permanent migration intake (for the year ending June 30th, 2018) has fallen by more than 10 per cent to less than 163,000 people. This is the lowest level for more than a decade.
The report states that the largest fall was in the family stream — predominantly spousal (partner) visas — which was slashed by almost 15 per cent to 47,732.
That’s a significant reduction in the number of parter visas granted.
Why the reduction in the number of partner visas granted?
It’s certainly not due to a drop in the number of applications.
The cut to the number of visa grants in 2017-18 has been attributed to new integrity measures applied to the system following the discovery of a high number of fraudulent claims being made
every year.
The Australian newspaper reports that it has confirmed that the integrity measures resulted in a 46 per cent increase in visas being refused and a further 17 per cent rise in applications being withdrawn due to the greater scrutiny. The number of applications processed remained at similar levels.
A 46% increase in visas being refused – that’s a very large increase!
This increase in visa refusals explains the recent huge increase in the backlog of cases at the Administrative Appeals Tribunal (AAT) – the AAT is where you can have a visa refusal decision reviewed.
I’ll be writing another blog post on the AAT backlog soon.
What to make of this?
Our experience is that well-prepared partner visa applications for genuine couples that are thoroughly supported by strong evidence are still being approved. Processing times have increased though.
So, this is not the time to lodge a poorly prepared or weakly evidenced partner visa application as, now more than ever, it will quite probably be refused unfortunately.
Feel free to contact me for a consultation if you need further information about this. Cheers.
Ross McDougall
Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is current at July 18th, 2018 – note that immigration law changes regularly.
Information (or the lack of it) contained in this blog post does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
Posted in Partner Visa Tips | Comments Off on A drop in partner visas granted and an increase in visa refusals in 2017/18.
Partner visa applicants in Australia and Bridging Visas
When you make a valid application for a partner visa in Australia (subclass 820/801) you will be granted a Bridging Visa A (BVA).
The BVA commences when the visa you held at the time you applied for the partner visa expires. The BVA is granted to you at the time you apply for the partner visa. It sits in the backgound inactive until it automatically activates when your previous visa expires.
The processing times for partner visa applications are long. Applicants often need to travel overseas from Australia for a short time, during the partner visa processing period.
If you are in that situation, you must apply for and be granted a Bridging Visa B (BVB) before you leave Australia. Don’t leave home without one!
What’s a bridging Visa B?
A BVB allows you to leave Australia and, more importantly, to re-enter Australia whilst your partner visa application is being processed.
When you return to Australia, your BVB continues and remains valid until you receive a decision on your partner visa application. Your BVA does not re-activate and it doesn’t need to.
If your BVA had full work rights in Australia attached to it (which it normally would do) then those full work rights are transfered to your BVB.
The ‘travel authority’ attached to your BVB (the permission to leave and re-enter Australia) will normally expire after you return to Australia. However, the BVB itself will not normally expire at the same time the ‘travel auhtority’ attached to it expires.
Complicated? Unfortunately yes, it can be.
The thing that needs to be clear is this – whilst your partner visa application is being processed, don’t leave Australia whilst holding an active BVA if you want to return to Australia. You should always apply for and be granted a BVB first, if you want to return to Australia.
Feel free to contact me for a consultation if you need further information about this. Cheers.
Ross McDougall
Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is current at June 15th, 2018 – note that immigration law changes regularly.
Information (or the lack of it) contained in this blog post does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.
Posted in Partner Visa Tips | Comments Off on Applied for a partner visa in Australia and now need to travel?
Visa application charges increasing. Lodge a partner visa application now, or later?
If you are ready to lodge a strong partner visa or prospective marriage visa application, you should think of doing so before July 1st, 2018.
Why?
Because the Australian government is likley to increase the visa application charge from July 1st.
Will it be a big increase?
In some recent years there have been very large increases in the visa application charges on July 1st. However, I’m not expecting it to be a big increase this year – probably a few percent.
But, if you are not going to be ready to lodge a well-prepared, well-evidenced partner visa application by July 1st, you should consider waiting until you can lodge a strong application (if you are able to wait – everybody’s personal situation is different).
It’s no use rushing to lodge an application that’s not very stong just to avoid a small increase in the visa application charge. Better to wait (if you can), pay the higher visa application charge and lodge a strong application with a better chance of success.
Feel free to contact me for a consultation if you need further information about this. Cheers.
Ross McDougall
Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is correct at May 18th, 2018. But, keep in mind that immigration law changes from time to time.
Posted in Partner Visa Tips | Comments Off on Government’s partner visa application charges to increase?
A Prospective Marriage (subclass 300) visa (often called a fiance’ visa) is a visa that entitles the holder to travel to Australia, marry their fiance(e), and then to lodge a partner (subclass 820/801) visa application in Australia. You must marry and lodge the partner visa application within 9 months of being granted the subclass 300 visa.
Ocassionally, the engaged couple marry before their Prospective Marriage Visa is granted. Unfortunately, their marriage makes them ineligible for grant of the Prospective marriage visa.
What to do?
Well, this scenario is definitely not recommended. But, it you find yourself in this situation, their is provision in Migration policy to allow the couple to be taken to have also applied for an offshore partner visa, due to their marriage. The Government’s Visa application charge for both visa types is the same.
An extract from the Immigration Department’s Policy:
If, after a subclass 300 application is made but before it is decided, the couple change their plans and marry outside Australia, subclass 300 time of decision criteria cannot be satisfied.
However, under regulation 2.08E, once the couple has notified the department of their marriage (as would be required of them by s104 of the Act), and provided the marriage is valid for visa purposes, the subclass 300 applicant is taken to have also applied for a sublcass 309/100 Partner visa.
In these cases, no additional Visa Application Charge is payable; the amount paid for the VAC for the subclass 300 visa is taken to be payment of VAC for the partner visa. The applicant should be advised to withdraw, in writing, the subclass 300 application or the visa will be refused.
Feel free to contact me for a consultation if you need further information about this. Cheers.
Ross McDougall
Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is correct at April 24th, 2018 – but keep in mind that immigration law changes from time to time.
Posted in Partner Visa Tips | Comments Off on Applied for a Prospective Marriage Visa and marry before visa granted? – not recommended, but hopefully not fatal.
A Prospective Marriage (subclass 300) visa (often called a ‘fiancee’ visa) is a visa that entitles the holder to travel to Australia, marry their fiance(e), and then to lodge a partner (subclass 820/801) visa application in Australia. You must marry and lodge the partner visa application within 9 months of being granted the subclass 300 visa.
Given that there is 9 months to marry and then to lodge the partner visa application, when is the best time after marrying to lodge the partner visa application?
Like many things in immigration law – it depends!
Best time to lodge the partner visa application
The subclass 820/801 application must be lodged within the 9 month validity period of the subclass 300 visa.
The 820/801 application doesn’t need to be lodged straight after a couple marry. Particularly if the couple marry early in the 9-month period.
In fact it’s better to wait to lodge the 820/801 application if gathering more evidence of the relationship is needed.
The Bridging Visa A that is associated with the 820/801 apoplication won’t begin any earlier if the 820/801 is lodged earlier. The Bridging Visa A doesn’t become active until the subclass 300 visa expires.
Work rights aren’t relevant here. The applicant has full work rights in Australia whilst holding the subclass 300 visa and whilst their Bridging Visa A is active.
Medicare when holding a prospective marriage visa
However, eligibility for Medicare won’t commence for someone on a subclass 300 visa until they lodge the application for the 820/801 visa.
Overall, I feel the main consideration is – when in the 9 month period can the applicant lodge the strongest application for the 820/801 visa? If that’s straight after the marriage, well and good. However, for some applicants, it won’t be.
Feel free to contact me for a consultation if you need further information about this. Cheers.
Ross McDougall
Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
This information is correct at March 8th, 2018 – but keep in mind that immigration law changes regularly.
Posted in Partner Visa Tips | Comments Off on Prospective Marriage Visa holder – best time to apply for a partner visa?
Romantic Love not necessary to show a genuine and continuing relationship? – The Federal Circuit Court thinks so.
Judge Riley of the Federal Circuit Court recently made an interesting decision recently in an appeal of a partner visa refusal.
The name of the case is Ali v Minister for Immigration & Anor [2018] FCCA 121 (22 January 2018)
A partner visa application had been refused by the Immigration Department. That refusal decision was reviewed by the Administrative Appeals Tribunal (AAT) who affirmed (agreed with) the department’s refusal decision.
The AAT’s decision was then appealed to the Federal Circuit Court.
Judge Riley set aside the AAT’s decision and sent the case back to the AAT to make a new decision on it “according to law”.
The Judge made the following comments as part of her decision:
78. I would add that the Tribunal in this case seems to have considered that a relationship can only satisfy the definition of a married relationship if it is based on Western notions of romantic love. Obviously, there are millions of people around the world who are in arranged and other marriages that are genuine and continuing, but which are not based on romantic love.
79. The Tribunal also seems in this case to have considered that a married relationship is genuine and continuing only if it accords with an inner suburban, middle class aspiration of equality and sharing of financial and other information. However, obviously, most genuine marriages around the world to this day have an enormous power imbalance and many genuine marriages, even in Australia, do not involve a complete sharing of financial and other information. That is apparent from sitting in the family law jurisdiction of this court.
Feel free to contact me for a consultation if you need further information about this. Cheers.
Ross McDougall
Immigration Lawyer
www.rpmlawyers.com.au
Tel: 08 8528 9187
7/2/2018
Posted in Partner Visa Tips | Comments Off on Court decides that romantic love is not necessary to prove a relationship is genuine and continuing for a partner visa.
The government has been attempting to pass a new law through parliament – so far unsuccessfully – which will require the Australian sponsor of a partner visa applicant to be ‘pre-approved’ as a sponsor.
Under the new law, only after pre-approval of their sponsor would the partner visa applicant be able to lodge their partner visa application.
Sponsors with a significant criminal record or who have sponsored before may not be ‘pre-approved’ as sponsors. This differs from the current process in that the sponsor at the moment is approved as a sponsor, or not, after the partner visa application is lodged.
The full effect of this new law, if passed by parliament, is as yet not completey understood.
‘Pre-approval’ of sponors is a process that will no doubt take a considerable amount of time – possibly many months.
As part of the approval process, sponsors need to provide police checks from every country they have spent a year or more in, in the last ten years. Obtaining these police checks takes time. Then, the immigration department has to process the sponsorship ‘pre-approval’ application. Again, that will take time.
Applying from Outside Australia
For a partner visa applicant that is applying from outside Australia this will be an added frustration and delay – but not critical for them.
Applying from within Australia
However, for a partner visa applicant that is applying from inside Australia, it could be problematic.
Many applicants from within Australia are on temporary visas that are expiring – visitor, student, or 457 visas, for example. They need to lodge their partner visa before their temporary visa expires. It’s common for applicants to lodge the parner visa application just before their temporary visa expires. This maximises the amount of time they have been in the relationship before they apply for the partner visa.
What then will happen to intending partner visa applicants in Australia whose temporary visa is expiring whilst their sponsor is being processed for ‘pre-approval’?
There is currently no answer to that question. We’ll have to wait and see.
However, it’s not in the Immigration Department’s best interests for partner visa applicants in Australia to become unlawful whilst waiting for pre-approval of their sponsors. This would create a big administrative headache for the department.
News from South Australian Births, Deaths and Marriages Office.
Relationship register – Since the launch of the South Australian Relationship Register in August more than 300 couples have applied to have their relationship registered. CBS is looking forward to receiving more applications and performing more ceremonies in 2018! Find out more about registering a relationship.
Same sex marriage –The right to marry under Australian law is no longer determined by sex or gender identity. Same sex couples may now register an intention to marry with CBS.
This is a news release from the Immigration department following on from the legalisation of same-sex marriage in Australia.
Changes for visa applicants in same-sex relationships
Important information for visa applicants following the legislation of same-sex marriage.
From 9 December 2017, you can apply for a visa as your partner’s ‘spouse’ if you are in a same-sex marriage following the legalisation of same-sex marriage in Australia.
Under the changes, if you are in a same-sex marriage you can apply for a visa as your partner’s ‘spouse’, rather than as their ‘de facto partner’.
The changes will apply to Partner visas (subclasses 100, 309, 801 and 820) and to all other visas where you can include your spouse in your application.
You can also apply for a Prospective Marriage visa (subclass 300) if you are in a same-sex relationship and genuinely intend to marry your prospective spouse in Australia.
This is a welcome development for potential partner visa applicants in same-sex relationships.
Feel free to contact me to arrange a consultation if you have any questions or require further information about this development.
The Immigration Department has announced – with very little warning – that from November 18th, 2017, all Partner and Prospective Marriage Visa applications must be lodged online.
This change applies to all partner and prospective marriage visa applications lodged in Australia or overseas.
Prior to this announcement, applicants had the option of lodging an online application or an application on paper which they would post to the department in Australia or overseas.
The effect of this
This change won’t affect our practice – we have lodged only online partner and prospective marriage applications for the last four years or so.
However, it will potentially significantly affect applicants who are attempting to prepare and lodge their partner visa applications themselves. Many of these applicants may not be confident using computers – or even have a computer. Additionally, the Immigration Department’s online lodgement software is unfortunately not easy or strightforward to use.
This change is no doubt an efficiency measure by the department. However, it may have unintended consequences for applicants attempting to prepare and lodge partner and prospective marriage visa applications themselves. Take care!
In my work with couples applying for a partner visa and sponsorship, over the years you get to see a lot of different partner visa scenarios.
A scenario that I see from time to time is this:
a couple are in a de facto relationship or a marriage
the Australian citizen or permanent resident sponsors their partner for a partner visa
unfortunately, the marriage or de facto relationship later breaks down
the breakdown occurs before the grant of the permanent partner visa
some time later, the couple overcome their differences and get back together again.
In the above scenario, can the Australian partner sponsor their partner for a partner visa again? Normally, yes!
A new partner visa application would need to be lodged – most likely from outside Australia.
The couple would again need to provide evidence that their ‘new’ resumed marriage or de facto relationship is genuine and will be ongoing.
Bascially it is recognition that relationships are complex and the course of love does not always run smoothly.
An interesting aspect of this scenario is that the sponsor would probably not be barred from sponsoring their former spouse or de facto partner for five years from the date of the original sponsorship. Sponsoring the same person again should not ‘count’ as a new sponsorship, for calcultaing the five year bar.
Because of the way the relevant Migration regulation is written, the five year sponsorship bar should only come into effect if a sponsor was to sponsor ‘another’ person within five years.
Feel free to contact me for a consultation if you need further information about this. Cheers.
Ross McDougall
Immigration Lawyer
www.rpmlawyers.com.au
12/11/2017
Posted in Partner Visa Tips | Comments Off on Sponsor the same person for a partner visa twice? Yes.
Until recently, the Department contacted applicants to ask them to provide updated evidence for their permanent partner visa processing. Not any more.
Two-step process
Applying for an Australian partner visa is a two-step process.
First, an application is lodged for a temporary partner visa (subclass 820 or 309) and for a permanent partner visa (subclass 801 or 100).
The application for the temporary partner visa is then processed by the Department. It’s normally granted (or refused) within 12 to 18 months of the visa application being lodged.
Applicants are eligible to be considered by the department for grant of the permanent partner visa 2 years after the date they applied for the temporary and permanent partner visas.
Until recently, 22 months after the partner visa applications were lodged, the Department would send a letter to the applicant (or their registered migration agent) by post or by email, advising the applicant that they would soon be eligible to be considered for the permanent partner visa. The letter advised the applicant and their sponsor to now send the Department updated evidence of the genuine nature of their relationship, and that their relationship was ongoing.
Recently the Department stopped sending these letters to partner visa applicants. It’s not clear why.
It’s now up to you to act
So, it is now up to partner visa applicants, and/or their migration agents, to remember to provide updated evidence of the relationship to the Department. This should be done at the 2-year point after applying for the partner visas. The department will no longer ask or remind partner visa applicants to do so.
Be careful not to underestimate this
Providing evidence for processing of the permanent partner visa has also become a “mini” partner visa application in the eyes of the Department.
I recommend that you don’t underestimate the process as refusals of permanent partner visas are not uncommon unfortunately.
Consider getting advice if you need to
Feel free to contact me for a consultation if you need further information about this process and development.
The South Australian Government has finally enabled male-female and gay couples to register their relationship in South Australia. The new South Australian relationship register commenced on August 1st, 2017. It’s been a long wait and it’s a welcome development!
Here’s how it works
You can apply if you are over 18 years of age and in a relationship with another person as a couple, provided at least one person lives in South Australia. Couples may apply irrespective of their sex or gender identity.
Your relationship cannot be registered if you or your partner are married, already in a registered relationship, in a relationship as a couple with another person, or related by family.
Applications must be accompanied by completed statutory declarations witnessed by an authorised person and the application fee of $108.
Both persons in the relationship must apply
The earliest your relationship can be registered is 28 days after lodging your complete application and payment of the fee.
It’s not a requirement that you have a ceremony to register your relationship. However, you may choose to, either at the Registry Office or at another location.
You can either order a standard certificate or commemorative certificate package.
Feel free to contact me for a consultation if you need further information about this long-awaited new development and how registering your relationship could benefit a partner visa application.
When do you need to register your de facto relationship for registration to be considered in your partner visa application?
Some de facto couples who have not been together as de factos for 12 months at the time of applying for their partner visa choose to register their de facto relationship (with a State or Territory government). Registration can increase the chances of success of the partner visa application.
Migration Regulation 2.03A(3) states that if an applicant applies for a Partner visa on de facto grounds and cannot show compelling and compassionate circumstances for the grant of the visa, the Minister for Immigration must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.
However, Migration Regulation 2.03A(5) provides that r.2.03A(3) does not apply if the de facto relationship is a relationship that is registered under a law of an Australian State or Territory government.
Notably, there is no requirement in the Migration Regulations for the registration of the relationship to have taken place prior to the date of the visa application.
The registration of a relationship can satisfy r.2.03A(5) if it takes place at any time up until the time of decision, as long as it continues at that time.
The Immigration Department’s policy states the following in relation to Regulation 2.03A –
Unlike regulation.2.03A(3) which explicitly requires the 12 month relationship criterion to be met at the time of visa application, regulation 2.03A(5) is silent on when the relationship must be registered. As such, an applicant who registers their de facto relationship after the application is made but before it is decided is taken to have met regulation 2.03A(5).
So, it is best to register your relationship as soon as possible, if you need to register your relationship.
However, it can be worthwhile registering your relationship right up until the date that a decision is made on your partner visa application – that date of decision can be 12 to 15 months after the date you applied for the partner visa.
Feel free to contact me for a consultation if you need information about this. This information is accurate at July 14th, 2017, but Migration law changes regularly.
At most, a person can have two different sponsorships of a spouse, de facto partner, or prospective spouse (fiancé) approved.
But, the law states that a person who has sponsored a person as a spouse, de facto partner, or fiancé cannot have another sponsorship approved under any of these visa categories until at least 5 years after the first visa application was made.
Additionally, if you yourself have been sponsored as a spouse, de facto or fiancé, you cannot sponsor a partner under any of those visa categories until at least 5 years after their own visa application was made.
These requirements can be waived if there are compelling circumstances affecting the sponsor. Getting a ‘waiver’ due to compelling circumstances is possible, but difficult.
How the 5-year period is calculated.
If you sponsored another person (or were sponsored yourself), the 5 year period between the first sponsorship and your current sponsorship is calculated from the date on which the first visa application was made to the date of decision of your current sponsorship.
Approval/refusal of your new sponsorship is a time of decision criteria for the new visa application. It is only at the time of decision on the new visa application that the sponsorship is approved.
Here’s an example of how it works (from the Immigration Department’s policy and guidance document that Immigration Case Officers refer to):
Example An Australian citizen has previously sponsored a spouse; the spouse application was made on 1/1/94; the sponsorship was approved and a BC-100 visa was granted. The marriage has now broken down and the Australian citizen sponsors another partner, this time for a Prospective Marriage visa (TO-300); the application was made on 1/10/98 (that is, 4 years 9 months between the first and second applications). Processing takes 6 months to complete; the final decision is made on 1/3/99; as 5 years has now elapsed since the first application was made, the current sponsorship may be approved.
So yes, you can potentially sponsor again before the 5 years is up. However, this is not a ‘risk-free’ strategy.
Feel free to contact me for a consultation if you need further information about this.
Ross McDougall
RPM Migration Lawyers
rpmlawyers.com.au
Posted in Partner Visa Tips | Comments Off on Sponsor two different partners for Australian partner visas in your lifetime? – Yes.
If your partner visa application has been refused, you often need to decide whether to appeal, or to apply again.
It’s usually possible to have a refusal decision reviewed by the Administrative Appeals Tribunal (AAT).
An AAT Tribunal member will look at your partner visa application again. They make a new decision about the factor your application was refused on. The Tribunal may agree with the refusal decision of the immigration department.
Or, they may disagree with the refusal decision, change the decision, and send your application back to the department for further processing.
If you have applied in Australia for a partner visa and the application has been refused, you cannot apply again from within Australia for a partner visa. You would have to go offshore (outside Australia) to lodge a new partner visa application.
However, if you lodged an offshore partner visa application and it was refused you could apply again from offshore.
But, it can be a better strategy to appeal that refusal decision to the AAT. When is it better to appeal? – when there is a good chance of success for the appeal. Sometimes there has been an error made in the refusal decision and this can be changed on appeal.
But, that’s not always the case.
Some refusals decisions are very difficult to have changed on appeal. For example, if you lodged a partner visa application in Australia and at that time you were unlawful or had held a bridging visa for more than 28 days, then you have what is called a ‘schedule 3’ problem.
Yes, it can be possible for ‘schedule 3’ cases to be successful at the Tribunal, but many are not.
If you are in this situation it can be better to leave Australia and lodge a new partner visa application from offshore. The outcome is then likely to be more certain. However, it all depends upon the facts of your particular situation.
So, you should get experienced advice when deciding whether to appeal a refusal or to apply again. Everybody’s situation is different. Sometimes it’s definitely best to appeal, other times it’s best to apply again.
I can assist you to make that decision, with honest, accurate advice.
Feel free to contact me to arrange a telephone or a face-to-face consultation.
Recently I’ve noticed an increase in clients coming to see me who have had their permanent partner visa application refused.
When you apply for a partner visa you are actually applying for two separate partner visas:
the temporary partner visa (subclass 820 or 309)
and
the permanent partner visa (subclass 801 or 100).
Two years from the date you apply for the partner visas you are considered for grant of the permanent partner visa.
At that time you are asked to provide more evidence that your relationship is still genuine and continuing. It’s like completing a ‘mini’ partner visa application again.
Currently (at January 2017) it’s taking the immigration department a year or more to process the permanent visa stage of a partner visa application. That’s incredibly slow!
So, it is often now around three years from the time you applied for the partner visa(s) until the grant of the permanent partner visa.
However, the immigration department has obviously gotten tougher in their decision making around permanent partner visas.
So, my recommendation to you is – don’t underestimate the second stage partner visa process.
You were granted the temporary partner visa. Great!
However, that doesn’t mean that you will almost automatically be granted the permanent partner visa. You need to prove to immigration all over again that you are still in a genuine and continuing partner relationship. Evidence, evidence, evidence, is needed.
There is also a fatal trap that most people don’t know about.
If you applied from offshore (outside Australia) for the partner visas (a subclass 309/100 application) you must be offshore at the time of the decision on the temporary partner visa application.
However, you can either be onshore (in Australia) or offshore at the time the decision is made on your permanent partner visa application.
But, if you permanent partner visa application is refused you can only appeal that refusal decision to the Administrative Appeals Tribunal if you were onshore at the time the refusal decision on your permanent partner visa application was made.
If you were offshore at the time of the refusal decision for your subclass 100 permanent partner visa application then you have no right to appeal that decision. Is this fair? No. Can anything be done about it? Usually, no.
So, the moral of this story is that if you have any doubt at all that your subclass 100 permanent partner visa application may be refused, then make sure that you are onshore when the decision is made. At least then you can have the refusal decision reviewed by the Tribunal.
Feel free to contact me if you have been refused and need advice. Take care out there!
The South Australian parliament in December 2016 has approved legislation that will introduce a relationship register in South Australia.
How Does it help de facto Visa Applicants?
That’s great news for same-sex and opposite-sex de facto couples. If you have a connection to South Australia and are applying for a partner visa and your de facto relationship is relatively new, the relationship register will help.
Why? Because if a de facto couple can register their relationship, the immigration department does not require them to have lived together for a year prior to applying for a partner visa. That requirement for a partner visa on de facto grounds is ‘waived’.
When Does it Start?
The legislation hasn’t been published yet. A start date has not been announced. I expect it will commence in 2017.
The draft of the relationship register legislation stated that only one of the de facto couple needs to live in South Australia for their relationship to be registered. There is no minimum period of residency in South Australia required. That’s good news on both counts.
So, it will ultimately be easier to register a relationship in South Australia than it is in some other Australian States.
For instance, Victoria requires both parties to the relationship to be living in Victoria. They also have to have lived in Victoria for one year before they can register their relationship.
If one (or both) of you are married, it won’t be possible to register your relationship in South Australia. You can’t register if you have already registered your relationship in another State.
The fine details will be confirmed when the legislation is published. It’s looking optimistic at the moment though.
It’s been a long time coming to South Australia! It will mean that de facto couples no longer need to move interstate to register their relationship before lodging a partner visa application.
In some States and Territories of Australia, registering your de facto relationship is possible.
This is available for both heterosexual and same-sex couples.
If you are lodging a partner visa application it can be useful to register your relationship.
For couples who are applying for a partner visa on de facto grounds, if your relationship is registered it means that you don’t have to prove you have been in your de facto relationship for 12 months before applying for your partner visa.
This can be very useful if you are in a newer de facto relationship.
You still need to be able to prove you are in a continuing relationship of a de facto nature however.
Where can I register my relationship?
The States and Territories which allow you to register your relationship are:
Queensland
New South Wales
Australian Capital Territory
Victoria
Tasmania
And soon to come is – South Australia!(proposed in 2017) That’s great!
Each State or Territory has different requirements for registering a relationship. Some States are easier than others:
Queensland
At least one partner must have proof of living in Queensland.
No minimum period of living in the State is specified.
Relationships can be registered while one party is outside of Australia
New South Wales
At least one partner must have proof of living in NSW for 28 days.
Relationships can be registered while one party is outside of Australia.
Australian Capital Territory (ACT)
At least one partner must have proof of living in ACT.
No minimum period of living in the ACT is specified.
Relationships can be registered while one party is outside of Australia.
Victoria
At least one partner must have proof of living in Victoria
No minimum period of living in Victoria is specified.
Relationships can be registered while one party is outside of Australia.
Tasmania
Both parties must have proof of living in Tasmania.
No minimum period of living in the State is specified.
South Australia (proposed mid 2017)
At least one partner must have proof of living in South Australia.
No minimum period of living in the State is specified.
Relationships can be registered while one party is outside of Australia.
So, keep registering your relationship in mind if you are in one of these States or the ACT.
It can help a lot to get a partner visa if you are in a newer de facto relationship.
You can be granted a partner visa either because you are married to your Australian partner, or, because you are in a de facto relationship with them.
The question sometimes arises that if you are applying for a partner visa because you are married to an Australian, does your marriage need to have taken place at the time you lodge your application for the partner visa?
Like most things in immigration law, the answer is – it depends!
The answer depends upon whether you are applying for a partner visa:
from within Australia (onshore subclass 820/801), or,
from outside Australia (offshore subclass 309/100).
If you are applying onshore because you are married to an Australian then yes your marriage needs to have taken place at the time you lodge your partner visa application.
But, if you are applying offshore then you can lodge your application for the partner visa before you have actually married your Australian partner.
You must though marry within the normal processing period (time from application to decision) for the offshore partner visa. On average, this is approximately 12 months.
Why is this of interest anyway?
Well, you may be getting married but you can’t get married right now. That could be for a number of reasons. A common reason we see is that because you or your partner is still married to someone else.
For example, a person in Australia can’t get divorced until after they have been separated from their former partner for 12 months.
So if you are outside Australia and marrying your Australian partner in, say, 9 months time then you can potentially lodge your offshore partner visa application now. You then get into the processing queue now and get your offshore partner visa issued much earlier than you otherwise would. Excellent!
However – and there’s always a however – their is a risk. It is that you lodge your partner visa application before your intended marriage and pay the government’s $6,865 visa application charge at the time you apply for the visa. Then, for whatever reason, your marriage doesn’t go ahead or doesn’t go ahead within the 12 month average processing time for the visa.
Unfortunately, you won’t be granted the visa. And, you almost certainly won’t get a refund of the visa application charge you have paid.
However, for those that can’t marry now, but are certain of their marriage plans, this is a strategy that is well worth keeping in mind. Cheers.
Sometimes in our practice we see clients who are still legally married to someone, yet that relationship has finished and they have not divorced.
They are now in a new relationship with someone else and want to obtain an Australian partner visa.
Their reason for not obtaining a divorce from their former spouse may be an inability to agree on the financial settlement from the divorce. Or, your former husband/wife won’t agree to a divorce; for example.
There could also be legal barriers to getting a divorce in some countries; particularly for women
To qualify for a partner visa in Australia you need to be married to your Australian partner or in a de facto relationship with them.
If you or your Australian partner are still married to someone else, generally you and your Australian partner cannot marry each other. Under Australian law you can’t be married to two different people at the same time.
However under Australian immigration law it is potentially possible to be in a de facto relationship with your partner and have that de facto relationship recognised for migration purposes. This is possible even if you or your partner (or both of you!) are still married to other people.
How?
Well, you must be able to show that the previous marriage has permanently ended and explain why a divorce hasn’t been obtained.
How do you show that the previous marriage has ended?
When a couple who are legally married live separately and apart on a permanent basis, they will potentially not be regarded as spouses for migration purposes – despite not obtaining a divorce.
So, it is open to a party to that marriage to enter into a separate de facto relationship. It can be recognised for migration purposes.
And further, it may sometimes be possible to show that a marriage has ended even if both of the parties to that marriage continue to share a home.
How?
You need to be able to show that although living at the same address:
the parties have organised their lives separately and do not provide any support or domestic assistance to each other, and
that other characteristics of a married relationship no longer exist.
Is all of the above easy? Unfortunately not.
Is it possible to have a successful partner visa application in this situation? Potentially it is. That is why this immigration department policy exists.
Obviously all of the above, whilst possible, is complicated. So, feel free to contact us at RPM Lawyers if you need help and advice. Cheers.
This information is correct at the date of publication – June 5th, 2016.
Your social media posts and your online presence can benefit your partner visa application. But, they can also potentially create problems.
When providing evidence for partner visa applications we often use extracts from our clients’ online posts.
Posts from Facebook, Instagram and other sites can be useful. Your social media posts can help to show the history and the genuine nature of your relationship.
However, beware! Immigration Department Case Officers regularly check a partner visa applicant’s and their sponsor’s posts on social media.
Often, they will look at your recent posts and posts from years ago.
Everything on your social media accounts should support your partner visa application. If not, you may get a ‘please explain’ letter from the Case Officer during the processing of your visa application.
Anything on your social media accounts that conflicts with what you have said in your partner visa application can lead to a refusal.
So, it’s a good idea to check your accounts thoroughly. Make sure that everything there supports your partner visa application.
Innocent old posts can sometimes be misunderstood by Case officers – it’s easy to make sure that this doesn’t happen to you – now that you know about it.
Feel free to Contact me if you have any questions about this or if you have received a ‘please explain’ letter from the Immigration department – it may not be too late to save your application.
