With borders effectively closed around the world, many couples and families have found themselves either separated from one another or forced to consider visa pathways sooner than they would like. We have received many queries since the coronavirus pandemic hit Australia regarding partner visas.
We thought we would try to address some of the important points here:
What are the criteria for a partner visa in Australia?
First, let’s cover the basics. If you are a non-citizen of Australia (visa applicant) and you are in a de facto or married relationship with an Australian Citizen or Australian Permanent Resident, you may be eligible for a partner visa. The relationship needs to be:
- to the exclusion of all others
There are also other key criteria like health and character requirements that must be met.
Demonstrating that you are a married couple is straight forward in most cases , so long as the marriage has been lawfully performed. In some cases, the marriage may not have been properly performed, for example, the celebrant didn’t have the legal authority to perform the ceremony or the person was already married to another person without an official divorce being processed.
To meet the de facto definition under Migration Law, you need to establish that you have been in a de facto relationship for at least 12 months.
It is often misunderstood that you need to prove that you have lived together for 12 months. This is incorrect. You need to prove that you have been in the de facto relationship for 12 months at the time you apply for the partner visa. It is possible to register a domestic relationship with Births, Deaths and Marriages or equivalent authority in your state or territory. In the event your relationship is registered, the length of your de facto relationship at the time you apply is not as strict.
Key aspects of the relationship
In all cases, both married and de facto relationships need to be genuine. The Department will generally look at 4 different aspects of the relationship to assess this:
- Financial aspects of your relationship
- Social aspects of your relationship (a bit trickier in during the coronavirus pandemic!)
- Nature of your household
- Nature of your commitment to one another
Relationships are complicated – we know! It is often difficult to distinguish between when the relationship started and when you committed to a de facto relationship. In many cultures arranged marriages mean that the bride and groom may not have had much of a relationship prior to marriage. Everyone’s relationship is different and if you are unclear about whether you meet the criteria, we recommend you get advice from a migration lawyer before applying.
Onshore vs Offshore application
When you make an application for a partner visa you are making an application for both a temporary and permanent visa.
- In Australia (onshore) – apply for a subclass 820/100 visa
- Outside Australia (offshore) – apply for a subclass 309/100 visa
If you apply while you are in Australia, you must be in Australia when it is granted.
If you apply outside of Australia, you must be outside of Australia when it is granted.
Given the long processing times for partner visas, it is important to consider whether to lodge onshore or offshore in some detail before proceeding. Getting clear advice before you proceed will help. During the coronavirus pandemic it is important to be strategic about when and how you apply for your partner visa.
I am in Australia with my Australian partner due to the coronavirus pandemic, but we have not been together for 12 months and we are not married. Can I apply for a partner visa?
This situation has come up a lot for people in Australia who hold temporary visas that are now coming to an end. This is especially the case for people who are unable to return to their home country due to border closures.
In this case we suggest that you consider whether the relationship is committed, ongoing and to the exclusion of all others. Do you consider yourselves de facto? If this is the case, you may want to consider registering your relationship and apply for a partner visa whilst in Australia.
So long as you apply whilst holding a substantive visa (this is any visa except a bridging visa) you should be granted a bridging visa A so that you can remain in Australia whilst the visa is being processed. Bridging visas and the conditions on those visas can be complicated, so before you apply you will want to understand what your visa conditions will be (including work and travel rights), as you may be stuck with these conditions for 31 months!
I am in Australia with my partner, but I currently hold a bridging visa or I am unlawful. How does the coronavirus pandemic impact my partner visa application (Schedule 3)?
A partner visa is one visa that can be applied for even if you:
- hold a bridging visa
- you have become unlawful
- you have been refused a different visa whilst in Australia
In each of these scenarios you may need to waive a requirement for the visa that appears in Schedule 3 of the Migration Regulations 1994 so that your partner visa can be approved.
In order to waive Schedule 3, you need to consider the following:
- Were the reasons you ended up on a bridging visa or became unlawful beyond your control?
- Are there compelling reasons to grant the visa?
- Have you substantially complied with previous visa conditions?
The coronavirus (COVID-19) pandemic has resulted in much of the worlds international airlines grounding large portions of their fleets. This has meant that many people are unable to depart Australia even if they wanted to.
There may also be people with other medical conditions that increase their risk of serious illness from coronavirus if they were to get on a plane. These are some of the factors that might be outside of your control and form the basis of a Schedule 3 waiver request.
Schedule 3 can be complicated to navigate. If you need to apply to waive Schedule 3 it will almost always increase the risk and complexity of the partner visa application. Solid advice before you apply is essential to understanding whether a waiver request is required and whether your circumstances may or may not meet the criteria. You can book a free 15 minute phone or video call with us to discuss your relationship and your options.
My partner is overseas, should we apply or wait?
At this stage the international travel ban does not apply to those who are immediate family members of Australian Citizens or Permanent Residents. You need to seek permission to travel first, but it is still possible to make it to Australia and be with your partner.
Currently offshore partner visas applications are being processed faster than onshore applications. However, this may change. If you are eligible to apply you may want to consider applying now for the visa.
You should note that if the visa is granted there will be a ‘must arrive before date’ on the visa. It is imperative you take this into account if you decide to apply. If your partner cannot get out of their country and to Australia before this date it could result in the visa being cancelled and needing to apply again.
If I apply for a partner visa, what Australian government entitlements am I eligible for?
Once you have lodged your partner visa application, the visa applicant is eligible for Medicare. The Australian government continues to announce new ways to support those living in Australia in response to the challenging coronavirus pandemic. It may be that you could become eligible for some welfare support, however, this is not generally the case.
We note the above is information only and is not legal advice. It is current as at the time of publishing and we continue to publish new information as the coronavirus pandemic evolves. We recommend you speak to one of our migration lawyers for a free 15 minute phone or video call to discuss your relationship and your options.