Recent Changes to Partner Visas
By Mark Webster
Wednesday, 26 March 2014
There have been a number of changes to partner visas in the last few years. Many of these changes are beneficial to applicants - particularly the introduction of registered relationships and more options for people onshore after refusal of other visa applications.
This article goes through some of the more interesting opportunities for people considering partner visas.
What Kinds of RelationshipIt is possible to apply for a partner visa if you are in one of the following types of relationship with an Australian citizen, permanent resident or Eligible NZ citizen:
1. Legally Married
You can be married either in Australia or overseas. If married overseas, this would generally be recognised in Australia providing you are both over 18 years of age and of opposite sexes.
2. Defacto Relationship
This would generally require you to show that you have lived together for at least 12 months. A shorter period would suffice in compelling circumstances - for example if you have a child together or if living together is not permitted in your country or if you have registered your relationship (see below).
3. Registered Relationship
It is possible to get your relationship registered by an Australian state or territory government. The process will depend on the state or territory in which you live. The main advantage of getting your relationship registered is that you can apply even if you have lived together for less than 12 months. You still need to show that you are living together, but there is no minimum amount of time you will need to show.
Temporary Partner VisasWhen you apply for a partner visa, you make a combined application for both a temporary partner and a permanent partner visa.
Generally, the temporary partner visa is granted first. This gives you full work and travel rights in Australia. You should also be eligible for Medicare, but would not be able to access full social security benefits. It lasts until a decision is made on the permanent partner visa - this is generally 2 years after lodgement of the partner visa.
Going Straight for PRIt is possible to be granted a permanent partner immediately, and not have to first hold your temporary partner visa for 2 years. This would be the case if you are in a "long term relationship" - this is defined as either:
- A relationship of at least 3 years; or
- A relationship of at least 2 years, with a dependent child.
Lodging After a Visa RefusalIf you have had a visa refusal and are now on a bridging visa or hold no visa, it is in general not possible to lodge a further visa application whilst in Australia. This is referred to as a Section 48 bar.
It is possible to lodge a partner visa even if you have a Section 48 Bar. For instance, if you have applied for a 485 visa, you would generally be granted a bridging visa which allows you to remain in Australia after expiry of your student visa. If your 485 is refused after your student visa expires, you will have a Section 48 bar and would not be able to lodge a further visa application in Australia. You would, however, be able to make a valid application for a partner visa.
Lodging Without a Substantive VisaIf you do not hold a substantive visa (ie you are in Australia on a bridging visa, or with no visa at all), you will need to meet additional criteria to lodge whilst in Australia. You will need to either show:
- That you do not hold a substantive visa due to circumstances beyond your control and within 28 days of your last substantive visa expiring - this is referred to as a "Schedule 3" requirement; or
- There are compelling reasons not to apply the Schedule 3 requirement
Compelling grounds for waiver of Schedule 3 can include:
- Where there are dependent children of the relationship; or
- You have been in a relationship with your sponsor for 2 years or more
However, there are a range of other circumstances which are considered relevant - for example if the visa applicant is the sole breadwinner of the family, and the Australian sponsor is not working.
Do I Get a Bridging Visa?If you apply for a partner visa whilst in Australia, you will receive a Bridging visa. The Bridging visa allows you to remain in Australia whilst your partner visa is being processed. The type of bridging visa will depend on what sort of visa you hold when you apply.
If you apply whilst holding a substantive visa, you will receive a Bridging A visa. This gives you full work rights. You can apply for a Bridging B visa if you need to travel outside Australia - you would generally need to provide evidence of a substantive reason for travel (eg special event or family emergency).
If you do not have a substantive visa when you apply (ie you have a bridging visa or no visa), you will receive a Bridging C visa. This has no work rights initially, and you would need to apply for work rights on the grounds of financial hardship. If you hold a Bridging C visa, you cannot apply for a Bridging B visa to travel outside Australia.
How Long Will it Take?Partner visas are generally taking 12 months or more at the moment. This can be longer if security clearances are required (eg for residents or Iran or Pakistan).
Health IssuesYou would generally need to meet the health requirement to be granted an Australian visa. However, in the case of partner visas, a health waiver provision exists. This means that even if you have a relatively serious medical condition, it may still be possible to obtain a partner visa. In this case, you can bring evidence of your financial situation and arrangements for care into consideration for grant of the visa.
What if my Relationship Breaks Down?If your relationship breaks down, you have an obligation to notify the Department of Immigration. This obligation continues until a decision is made on your permanent partner visa (in most cases, 2 years after lodgement of the initial application).
Depending on the stage you are up to, the result could be one of the following:
1. Partner application lodged, awaiting decision on Temporary Partner Visa
In this case, your temporary and permanent partner applications would be refused. In this case, your bridging visa would last 28 days + notice period from the date of decision
2. Temporary visa Granted, awaiting decision on Permanent Partner Visa
Your permanent partner application would be refused. Your temporary partner visa would cease immediately, but your bridging visa would last 28 days + notice period after the decision
3. Permanent Partner Visa Granted
No impact. Your permanent visa will continue to be in effect.
If your relationship has ceased prior to grant of your permanent partner visa, you can still be granted permanent residence if:
- Your relationship has broken down due to family violence; or
- There are children for whom both you and your partner have custody or access rights
Permanent Partner (Second Stage)Generally Immigration will make contact with you about 2 years after your partner visa was lodged. At this point, you would generally need to provide:
- Updated police checks
- Statements from you and your partner on your relationship
- Updated evidence of cohabitation, financial and social interdependence
It is now possible to initiate this process by lodging an online application.
ConclusionWhilst the concept of a partner visa may seem simple, the legislation behind this type of visa is actually quite complex.
Acacia has significant expertise in this area, and can assist you in getting through the process more smoothly and efficiently.
If you would like further advice on partner visas, please contact us to book in for a consultation.