Partner Visa Program (Spouse Visa)
Family and Partner visa programs enable individuals to migrate to Australia if they have suitable partners and family members (Australian Permanent Residents or Citizens) within Australia.
Recent changes that have come into effect also now require the sponsor to meet the character requirements. This means that as well as the visa applicant, the Australian sponsor will also need to provide a Police Clearance Certificate from each country where they have lived for 12 months or more in the last ten years.
Please note that there were other changes expected to the partner Visa Program (Spouse Visa) in late 2017 that did not take effect. These changes may still take effect in 2018 (The Senate is sitting again on the 19/03/2018 and at this tim it is expected that the will discuss the Bill) If this passes it will affect the way applications are processed. We believe that this will primarily affect applications that are lodged from Australia. Processing times for onshore and offshore applications could be significantly impacted.
The new regulations proposed that partner visa sponsorship applications would need to be lodged under stricter criteria and approved before the overseas partner visa application could be lodged.
The new 2 step process is expected to delay the lodgement of the overseas partner application and require the overseas partner to have a valid visa until a visa application for the overseas partner can be lodged.The bill proposing the new regulations is currently before the Senate and as such has not been enacted. It is likely to not come into effect until 2018.
We recommend that our clients take advantage of the deferral of the new regulation and lodge their sponsorship and partner visa application prior to the 2018 changes.
The 2018 change of Partner Visa will require the sponsor, and not just the applicants, to be assessed as well
These key changes amends the Migration Act 1958 to establish a sponsorship framework for the sponsored family visa program to: establish a sponsorship framework for the sponsored family visa program to:
- separate sponsorship assessment from the visa application process for family sponsored visas;
- require the approval of persons as family sponsors before any relevant visa applications are made;
- impose statutory obligations on persons who are or were approved as family sponsors and provide for sanctions if those obligations are not satisfied;
- facilitate the sharing of personal information between parties identified in a sponsorship application;
- enable the refusal of a sponsorship application and the cancellation or barring of a family sponsor in certain circumstances;
- enable the regulations to prescribe details for, and in relation to, the operation of the sponsorship framework; an
Partner visas are for people who are married to, or in a de facto relationship with an Australian partner (the sponsor). The application can be made in or outside Australia. Applications can be made from inside Australia if the person holds a suitable visa that does not restrict them from doing so.
Partner visa applicants must:
- have a mutual commitment to a shared life together, to the exclusion of all others
- have a genuine and continuing relationship
- live together or not live separately and apart on a permanent basis.
Married visa applicants must also show that their marriage is valid under Australian law.
De facto visa applicants must show that they are not related by family, and that their relationship has existed for at least 12 months immediately before lodging the application. There are four key elements that need to be demonstrated. There are also waiver provisions to this requirement.
A partner visa is assessed over two stages. A temporary partner visa is granted at first stage, and the permanent visa is granted at second stage.
Generally, the permanent partner visa is granted two years after the application is made, if the couple is still in a married or de facto relationship. If the couple is in a long term relationship when they lodge the application, the two year period does not apply. A long term relationship is one that has existed for at least three years, or two years if the couple has a child.
In certain circumstances, it might be possible to grant the permanent partner visa sooner than two years, for example, if the relationship breaks down and the applicant has a dependent child or the applicant or dependent child has suffered family violence committed by the sponsor.
A partner visa applicant may be able to include certain members of their family unit in their application. This however, will depend on where the applicant and family member is at the time of application and whether the visa applicant has been granted the temporary visa or not.
Visa Classes under this stream:
Spouse: the husband, wife or De-facto partner of an Australian sponsor/nominator.
Spouse temporary visa (subclass 820) and permanent visa (subclass 801):
This visa is for applicants already in Australia (and who meet the criteria) to stay in Australia with their partner, who must be an Australian citizen, Australian permanent resident or eligible New Zealand citizen. If after 2 years on the temporary visa the spousal relationship is continuing, a permanent visa may be granted.
Spouse temporary visa (subclass 309) and permanent visa (subclass 100):
This visa allows applicants overseas who are the spouse of an Australian citizen, Australian permanent resident or eligible New Zealand citizen to enter and stay in Australia with their partner. If after 2 years on the temporary visa the spousal relationship is continuing, a permanent visa may be granted.
This visa is suitable for the married or de-facto (including same sex relationship) partner of an Australian sponsor.
There are several requirements that applicants must meet in order to be considered for a Partner Visa. These include the following:
Must be of marriageable age:
- If you are both living in Australia, you must have turned 18;
- If neither of you is living in Australia, you must both have turned 16;
- Provisions exist for persons between the ages of 16 and 18 to marry under court order.
Must be a recognized marriage under Australian Law:
- Marriage must be legal in Australia or in country of marriage;
- Marriages NOT recognized include:
- Arranged or proxy marriages (husband and wife must have physically met before marriage, and live together after marriage);
- Polygamous marriage;
- Marriages within prohibited degrees of relationship (generally meaning close family members);
- Same sex marriage (considered a de facto relationship);
- Marriage of convenience;
- Marriage that is only recognised by custom.
De facto (relationship (this is for couples who are not married or who are in a same sex relationship):
• You must Live together (or do not live apart on a permanent basis);
• Commitment to a shared life as husband and wife to exclusion of all others;
• Must have lived together for a period of at least 12 months prior to lodging visa application.
Please note that there are exception to this rule. We would be happy to discuss them with you in relevance to your circumstances.
This visa can be applied for from within, or outside of Australia subject to meeting the relevant criteria.
Please be aware:
All relationships will be assessed on a number of factors to determine that the relationship is genuine and continuing.
We will advise you on the evidence required to demonstrate the genuine nature of the relationship.
Prospective Marriage Visa (subclass 300):
The prospective marriage visa is for people outside Australia who intend to marry their Australian sponsoring partner after they enter Australia. This visa is not available for people in Australia and the application must be made as an offshore application.
Prospective marriage visa applicants must:
- the applicant and sponsor need to be 18 years of age
- The applicant needs to have met their sponsor, in person, since they both turned 18
- be known to their sponsor
- be able to enter into a marriage that is valid under Australian law (that is, there must not be any impediments to their marriage).
A prospective marriage visa is valid for nine months from the date of grant. A prospective marriage visa holder must enter Australia, marry their sponsoring partner and apply for a partner visa in Australia within the nine month period. The visa cannot be extended in Australia.
This visa allows applicants overseas to apply enter Australia on the basis of their intention to marry an Australian Citizen, Australian permanent resident or eligible New Zealand citizen. This visa will allow the applicant to enter Australia for a period of 9 months with the purpose of getting married. Applicants will need to demonstrate the following additional requirements:
- That they have met and are known personally to their Australian fiancé;
- That they are both free to marry and that there are no impediment to marrying under Australian Law;
- That they are intending to marry each other within 9 months of entering Australia;
- That the applicant satisfies health and character requirements;
The applicant and sponsor will need to provide evidence on their relationship and also demonstrate that they are genuinely intending to marry.