Spouse Visas - Sponsored Temporary to Permanent Residency under the Family Migration Stream
Spouse Visas - Sponsored Temporary to Permanent Residency under the Family Migration Stream
Married, De facto and Same Sex Couples
So you have been in a relationship in Australia with an Australian citizen, permanent resident or eligible New Zealander and can't bear the thought of ever being apart again and are now wondering how you go about making a visa application to remain in Australia with your partner.
Or like my fiancAe and I, you met overseas, travelled the world and Australia together, lived in tents, shacks and VW Combie vans and now want to settle down in Australia to have children with strange accents.
Either way, it is important to understand -
1) How and when your 'right to apply' for the visa arises,
2) What is required to then make a successful Australian spouse visa application, and
3) When and how you get to stay in Australia while a decision on your application is being considered.
Generally
It is also important to understand that the Department of Immigration & Citizenship will test your application very rigorously. Spouse applications are one of the most abused visa pathways for people that would not otherwise be able to get a visa to come to or remain in Australia.
Simply lodging an application and expecting to be successful is not enough. You must support your application with as much evidence of your relationship as possible: The more evidence the greater your chances of success.
2-year Temporary Visa to Permanent Residence
Other than the prospective marriage visa (see below), the 4 spouse visa options discussed in this article all work the same way, regardless the basis for applying for the visa -
1. You must apply for both the temporary 2 year visa and permanent residence visa at the same time.
2. If successful, you will initially be given a 2-year temporary visa dating from the date you lodged the application, not the date the decision on your spouse visa application was made.
3. After 2 years, if the relationship is still going, you live together and your partner still sponsors you, you are eligible for the grant of permanent residence.
4. $2105.00 is the application charge at the time of writing this article.
Sponsorship
In all of the applications discussed in this article, your partner acts as your sponsor for the visa application.
There are limitations on the number of sponsorships an Australian can enter into so if your partner has sponsored somebody before, then you should get legal advice on whether they are able to sponsor you as they may be prohibited due to this sponsorship limitation.
Ok so that is the preliminary stuff covered. Let's get into the visa's themselves.
Option 1 - Prospective Marriage Visa - You intend to get married! (Subclass 300)
If you and your partner intend to get married then it is possible to apply for a 'prospective marriage visa', also sometimes known as a 'fiancAe visa'.
This is an 'offshore' visa application. That means the person applying for the visa (the non-Australian) must be outside of Australia at the time the application is made and also outside of Australia at the time the decision is made.
If successful, you will usually be given a visa for nine months for the purposes of entering into the marriage disclosed to the Department of Immigration & Citizenship in the visa application.
Essentially as long as you have met and can prove it, genuinely intend to get married - i.e. have lodged a Notice of Intention to Marriage at Births Deaths & Marriages in Australia and have booked a wedding date, then you should be able to satisfy the criteria for the grant of this visa.
Usually 'Met' means face to face and does not mean met over the internet. This visa provides for culturally arranged marriages also.
There will be condition attached to your visa, if granted, that states you must enter into the marriage as declared. After getting married, and before your visa expires, you will then need to lodge a further spouse application to remain in Australia with your partner. If you do not get married, generally speaking, you will have to leave Australia before your visa expires.
Option 2.1 - Spouse Visa - You get married!
Ok the big day has arrived and it's time to walk down the Aisle!
The day you get married to your partner in a ceremony that is recognised as legal in the country where the marriage takes place then, Australian immigration law gives you the right to apply for a visa on the basis of this marriage.
For example, you get married in a civil ceremony in the United Kingdom, this would be recognised. However, if you are looking into some alternative marriage options, e.g. a religious Buddhist ceremony in Bali, without also then engaging in a recognised civil ceremony, check first to see if it will help you to get an Australian visa, if this is one of the goals of your marriage.
It is the act of marrying that establishes the right to apply. Remember though, it does not guarantee you the grant of the visa: see below 'Proving the Genuineness of Your Relationship'
Option 2.2 - Spouse Visa - You have been living in a De facto relationship for '12 months'
Let's say you landed in Australia, went off and did 3 months on a farm, got your working holiday visa for another year and have been living with your partner for 12 months now.
On the morning of the 366 day of living together (or 1st day of your 2nd year living together) your right to apply for your spouse visa has crystallised.
An application made even one day before this date, is arguably doomed to fail as you cannot satisfy the 12-month living together rule. There are very limited exceptions, but cutting corners on the 12-month risks the application being refused.
As an example, you land in Australia, meet your partner the next day and move in together 3 days later. You are so content that you don't bother going to regional Australia to work to get your working holiday visa extended and just before your first 12 month working holiday visa expires you lodge your spouse application. This application will likely be refused as you have lived together for 3 days less than 12 months.
To get to 12months, you lodge an Australian visitor visa application in Australia before your working holiday visa expires and disclose that you are in a relationship with an Australian. This also gets refused as the case officer decides that you are using the visitor visa for the purpose of staying in Australia solely to get married.
To avoid this, you don't disclose the relationship and get the visitor visa. You then lodge the spouse application and get refused on the basis that you have not disclosed the relationship in your last visa application.
So remember, it is the 12-months living together that established the opportunity for you to apply for the spouse visa in this scenario and it is a strictly applied rule.
Proving the 12-months
This can be easy if you have got a lease in joint names, utilities in joint names and all your individual and joint mail addressed to the address on your lease. Support this with lots of photos, a couple of dogs and cats, some statutory declarations from family and friends and the Department of Immigration & Citizenship will probably be forced to accept that your relationship is genuine and that you have been living together for the required 12 months.
However, it is not always that straightforward, particularly for backpackers, and you may have to get creative with the proof you provide.
For example to proof that my partner and I had been living together for over 12 months we provided receipts from the caravan park in Griffith, where we stayed while working to extend her working holiday visa. I also provided my credit card bills and my fiancAe's bank account statements to show that we had been making withdrawals from ATMs in the same town at the same time, photos of the Combie parked on farms and pay slips from the farm to show that we had lived and worked on the farm. We provided photos of our dogs as puppies and as 2 year olds, and there veterinarian records showing us as joint owners. Once we returned to live in Sydney, with an extra year on Kitty's visa under our belt, we were then also able to provide recent leases in joint names, joint bank accounts and relied on the totality of the evidence to prove we had lived together for more than 12 months and that our relationship was genuine.
The Department of Immigration & Citizenship were then kind enough to grant the 2 year temporary visa to my now fiancAe and we 'lived happily ever after'.
Proving Your Relationship is Genuine
Remember people trying to abuse the Australian spouse visa pathway will marry their bogus spouse, present their relationship as loving and genuine and provide evidence to support this.
It is the strength of this evidence that the Department of Immigration & Citizenship case officer will scrutinise in coming to a decision whether your relationship is genuine and therefore your application is a worthy of the grant of the temporary 2 year spouse visa.
The case officer will consider a range of elements when considering your spouse visa application and look at things like the financial aspects of the relationship, nature of the household in which you live, social aspects of your relationship and the nature of your commitment which ultimately must show you share a mutual commitment to a life together as de facto spouses to the exclusion of all others: No room for new age open relationship at the Department of Immigration & Citizenship, that's for sure!
It you support your application with enough persuasive evidence to satisfy the criteria for the grant of a spouse visa, then the case officer is left with no discretion to refuse your application and must grant the visa. Therefore, a well prepared, well supported and complete application is a key to a successful visa outcome.
Option 2.3 - Same Sex Couples, male and female - the 12 month living together rule again!
The interdependency or same sex visa subclass is based on virtually identical criteria as the de facto spouse visa set out above but of course the language is a little different. Claims made in an interdependency visa application should be established in the same manner as detailed above.
The term for the same sex relationship in Australian immigration law is 'an interdependent relationship'. You are in an interdependent relationship for the purposes of Australian law if you have been living with your same sex partner in a 'spouse like' relationship for at least 12 months.
If you have lived in an 'interdependent relationship' for 12-months, then you are eligible to apply for and be granted a 2 year temporary residence interdependency visa and permanent residence visa if your sponsorship and relationship is still ongoing after the initial 2 year period is up.
Remember the 2 years dates from the date you lodge your spouse visa application, not the date the 2 year temporary visa is granted.
The genuineness of your relationship will be scrutinised in very much the same way as all other relationships will be where as spouse visa application has been lodged with the Department of Immigration & Citizenship.
Visa subclasses and Subclass numbering
This can be very confusing but it is actual quite simple.
An 'onshore' spouse application will be a visa application for the visa subclasses 820 & 801: subclass 820 being the 2 year temporary visa and the 801 being the permanent visa. This means that you must be in Australia with a substantive visa, or satisfy one of the exceptions discussed below, and therefore can lodge the application in Australia.
If you can't then you would need to lodge an 'offshore' visa application and leave Australia to be able to lodge the application. Because it is an offshore application, the visa numbers are different. The offshore application subclass numbers are subclasses 309 & 100. Remember, with the offshore application you do not get a bridging visa and would have to also remain outside of Australia while you are waiting for a decision.
The interdependency visa application subclass numbers are subclasses 826 & 814 for the 'onshore' application and subclasses 310 & 110.
Don't let the numbers confuse you. They merely represent what visa you are applying for and where you have to be when you lodge your application.
Option 3 - Unlawful spouse applications - you have overstayed your visa, are in love and don't want to leave!!
Let's face it, it happens! People fall in love, can't possible bear the thought of separating from their soul mate and make the decision to risk it all for love, overstay their visa and disappear into the community to build their life and family with their partner in Australia.
Well if this sounds like you or a friend of yours, don't give up hope yet, their maybe an option to make a valid onshore spouse visa application for the grant of a visa to give you lawful residence in Australia and allow you to stay with your partner.
Section 48 barred?
The first question to ask is, 'have you had a visa application refused or a visa cancelled since last entering Australia? If the answer is yes, you are not eligible to make this application in Australia as you are facing a 'section 48 bar' which stops you from lodging this application while in Australia. A person in this situation would have to leave the country and lodge the spouse application offshore and remain there while you await a decision.
If your visa expired less than 28 days ago, then you are still eligible to apply as long as you do so within 28 days of the date of expiry of your visa.
If you are outside of this period, then you would need to establish compelling circumstances to be successful in applying for a spouse visa without a valid substantive visa.
Department of Immigration & Citizenship policy provides that 'compelling circumstances' can be established where -
1. There is an Australian Citizen child from the relationship, or
2. The visa applicant and their sponsor are already in a long-standing spouse relationship (taken to be a relationship which has existed for at least 2 years.
The law in this area is very complex and I strongly recommend that you contact us for legal advice before you consider lodging an Australian spouse visa application in circumstances where you don't hold a valid visa permitting you to be in Australia lawfully.
Conclusion
In my experience, people in loving relationships seem to find it hard to believe that anybody could possibly doubt the genuineness of their love and commitment to each other. That is until they make an application to the Department of Immigration & Citizenship for an Australian spouse visa.
Our Australian-citizen sponsor clients often express their frustration and disgust at the treatment they receive from their case officer at the Department of Immigration & Citizenship.
So be warned! Do not take this application lightly and think it is going to be as easy as holding hands, staring into each other's eyes and smiling while the Department of Immigration & Citizenship case officer warmly touches you on the shoulder while handing you your permanent residency.
This is not the time to cut costs as in most cases; you may only get one chance at making a successful spouse visa application as it is important to remember, 'it's your future riding on it!'
All applicants for an Australian spouse visa should at least take an initial consultation with specialist Australian immigration lawyers, such as Turner Coulson Immigration Lawyers, to understand the strategies available to them and the strengths and weaknesses of their own specific circumstances. This will ensure that when the application is lodged it is given the strongest possible chances of success.
This article should not be taken as legal advice and cannot be relied upon as a complete or accurate representation of the law. It is meant to be indicative only and a general informative guide to the visa application. While the author has made all reasonable attempts to ensure it is accurate at the time of writing, visa applicants should take independent legal advice before lodging any Australian visa application with the Department of Immigration & Citizenship
Turner Coulson Australian Immigration Lawyers Sydney
