Turner Coulson Immigration Lawyers - Spouse Visas– Sponsored Temporary to Permanent Residency under the Family Migration Stream
Married De Facto and Interdependency or Same Sex Couples
So you have been in a relationship in Australia with an Australian citizen or permanent resident and are now wondering how you go about making an Australian spouse visa application to remain in Australia with your partner. Alternatively, you might want a prospective marriage visa to travel to Australia to marry your partner and stay in Australia.
Either way, it is important to understand -
1) How and when your ‘right to apply’ for the spouse visa arises,
2) What is required to then make a successful Australian spouse visa application, &
3) When and how you get to stay in Australia while a decision on your spouse visa application is being considered.
The Department of Immigration & Citizenship will test your application very rigorously. Simply lodging your spouse visa application and expecting to be successful is not enough. You must support your application with as much evidence of your spousal relationship as possible
Prospective Marriage Visa – Subclass 300
If you are not married but intend to marry your Australian citizen partner, then it is possible to apply for a ‘prospective marriage visa’, also sometimes known as a ‘fiancée visa’.
You must be outside of Australia to apply for the prospective marriage visa and must remain outside of Australia until decision is made on your visa application. If you are already married you cannot apply for the prospective marriage visa.
If granted your prospective marriage visa will be granted for nine months for the purposes of entering into the marriage as declared in your visa application. After you are 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 you will have to leave Australia before your visa expires or become unlawful.
Australian Spouse Visa on the Basis of ‘lawfully married’
Subclass 820 / 801 in Australia & Subclass 309 / 100 outside of Australia
Once you are married to an Australian, Australian immigration law gives you the right to apply for a visa on the basis of this marriage. The marriage must be considered legal in your country to have a right to apply.
It is the act of marrying that establishes the right to apply. Remember though, it does not guarantee you the grant of the visa.
When you apply for your Australian spouse visa, you must apply for both the temporary 2 year visa and Australian permanent residence visa at the same time. After 2 years on the temporary spouse visa, and your partner still sponsors you, you are eligible for the grant of Australian permanent residence as the spouse of an Australian.
Australian de factor partner Visa
When you have lived with your Australian citizen or Australian permanent resident partner for at least 12 months (365 days and not a day less) you’re right to apply for an Australian de facto visa.
A de facto partner ( spouse) visa 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 it is a rule strictly applied.
Proving the 12-months living together is a matter of providing sufficient documentary evidence such as 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, 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.
Sponsorship of your Australian Citizen or Permanent Resident Partner
In each of the Australian spouse visa applications discussed in this article, your partner acts as your sponsor for the spouse 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.
Proving the Relationship is Genuine
Your Australian spouse visa application will be scrutinised very closely to determine if your relationship is genuine. The case officer will look at all aspects of your spouse or de factor relationship including 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 to ultimately determine if you and your Australian partner share a mutual commitment to a life together as de facto spouses to the exclusion of all others.
Therefore, a well prepared, well supported and complete application is a key to a successful visa outcome.
Interdependency Visa / Same Sex Couple Visa
Subclass 826 / 814 in Australia or Subclass 310 / 110 outside of Australia
The term for the same sex relationship in Australian immigration law is ‘an interdependent relationship’ or interdependency. You are in an interdependent relationship for the purposes of Australian law if you have been living with your same sex partner in a ‘de facto like’ relationship for at least 12 months.
The interdependency or same sex visa subclass is based on virtually identical criteria as the de facto spouse visa set out above. Claims made in an Australian interdependency visa application should be established in the same manner as detailed above. If successful you will get a 2 year temporary Interdependency visa and then be eligible for Australian permanent residence.
The genuineness of your relationship will be scrutinised in very much the same way as all other relationships will be.
Unlawful spouse applications – you are in Australia but do not have a substantive Australian Visa
It happens! People fall in love and make the decision to overstay their visa and disappear into the community to build their life and family with their partner in Australia.
In these circumstances, it is possible to lodge an Australian spouse visa application in Australia to remain in Australia with your Australian citizen or permanent resident partner until a decision on your spouse visa application is made.
Within 28 days of expiry or establish ‘compelling circumstances’
If your last Australian visa has expired, you are still eligible to apply within 28 days of the expiry date.
After 28 days you then must establish compelling circumstances. Compelling circumstances can be a child of the relationship with the Australian citizen or permanent resident or the relationship has been going for 2 years or more.
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.
So be warned! Do not take your Australian spouse visa 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