Partner visa applications and interviews

Are partner visa applicants interviewed?

The simple answer is – some are, and some aren’t!

It is not guaranteed or automatic that the immigration department will interview partner visa applicants and/or their sponsor.  Many times, partner visas are granted to applicants who have not been interviewed – their application is decided solely ‘on the papers’ (on the evidence and documents submitted).

However, some other partner visa applicants – and sometimes also their sponsor – are interviewed.

What happens at an interview?

Interviews can be face-to-face at an immigration department office. Or, they can be by telephone. Telephone interviews are more common than face-to-face.

A potentially difficult thing with telephone interviews is that often they happen without notice or being scheduled.  The applicant just receives a call from the immigration department on their telephone – it’s a ‘surprise’ interview about their partner visa application.

What are applicants asked at interview?

There is no ‘formula’ for what is asked at an interview – they are all a bit different.  But, you could expect to be asked about your knowledge of your partner – in some detail.

The interview is designed to probe each person’s knowledge about the relationship and about his/her partner, to help the immigration department determine whether a relationship is genuine.

I can provide my clients with a sample list of some of the potential questions (around 100 example questions) that might be asked in an interview.  They are then prepared when – and if – the immigration department calls.

My recommendation

Overall, I recommend that you don’t underestimate the interview process.  Answer the questions fully and truthfully.  If you don’t know the answer to a question then it’s best to say you don’t know.  That’s much better than making up an answer to a question that you don’t know the answer to.  Good luck!

Feel free to contact me for a consultation if you need further information about this.

Regards.

Ross McDougall
Immigration Lawyer

www.rpmlawyers.com.au

Tel: 08 8528 9187

This information is correct at June 17th, 2019.  But, keep in mind that immigration law changes from time to time.

Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.

 

 

 

 

Partner visa allocations for 2019/2020 won’t reduce the processing backlog.

Partner visa places allocated

The Australian Government has recently advised that it has allocated 39,799 places for partner visas in the 2019/2020 financial year.

This is the same number of places that were allocated to partner visas in the current (2018/2019) financial year.

At the moment there is a backlog of approximately 80,000 partner visa applications (including prospective marriage visa applications) within the processing system.

As there will be no increase in partner visa places for the forthcoming financial year, and due to the current backlog of applications, it can be expected that the current long average processing times of approximately two years will continue.

This graph clearly illustrates the current situation, where demand for partner visas is outstripping supply:

With the processing pipeline backlog continuing to increase, average processing times may even increase further – the significant increase in the visa application charge to approximately $7,100 has not deterred many from applying for partner visas it seems.

The fair thing would be for more partner visa places to be allocated and processing of applications sped up to clear the backlog.

What can you do about this if you think the present situation is unfair? – contact your local Federal (not state) Member of Parliament to express your concern.

Feel free to contact me for a consultation if you need further information about this.

Regards.

Ross McDougall
Immigration Lawyer

www.rpmlawyers.com.au

Tel: 08 8528 9187

This information is correct at May 13th, 2019.  But, keep in mind that immigration law changes from time to time.

Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.

 

The medical examination for partner visa applicants – when to complete it?

All applicants for Australian partner visas need to complete – and pass – a medical examination.

Medical examinations are conducted by doctors that have been authorised by the Australian immigration department – your own doctor can’t conduct the medical examination for you.

There are Australian immigration department authorised doctors in most countries.

The results of the medical examination are valid for 12 months – in some situations this 12-month validity period can be extended for a further 6 months.

When can the validity period be extended?

Here is an excerpt from the immigration department’s internal policy with regard to this:

Visa processing officers can, in certain situations, extend the validity of an applicant’s health clearance. Visa processing officers should only be extending the validity of a health clearance in very exceptional circumstances. Such extensions should not be given automatically. This is because an applicant’s health condition may change over time, in particular where an applicant is residing in a higher TB risk country.

If the validity period of a health clearance can be extended, this extension can be granted for a maximum period of 6 months only.

Why is the validity period important?

It’s important because the processing period for partner visa applications has increased to 18 to 24 months on average. Theoretically, the results of a medical examination could expire before the decision on the visa application is received. This would mean that the visa applicant(s) would have to complete the medical examination again – and pay the cost of it again.

What are some options?

• Applicants could complete the medical straight after the visa application is lodged

Or,

• They could wait six months from when the visa application is lodged (or even wait until the Case officer that processing the application requests that they do the medical examination).

The advantage of doing the medical examination straight after the visa application is lodged is that the application then becomes ‘decision ready’ – the case officer can theoretically approve the application on the day they start processing the file.

The disadvantage of doing it straight after the visa application is lodged is that the application may not be processed within a year of completing the medical examination. In that case you may need to do the medical again and incur the cost of it again.

Some, but not all, applicants decide to do the medical examination straight after the visa application is lodged and run the risk of incurring the cost of having to do it again later. They do this in the hope that the visa application will potentially be processed more quickly – sometimes it is.

 

Feel free to contact me for a consultation if you need further information about this.

Regards.

Ross McDougall
Immigration Lawyer

www.rpmlawyers.com.au

Tel: 08 8528 9187

This information is correct at March 19th, 2019.  But, keep in mind that immigration law changes from time to time.

Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.

Quicker grant of the permanent partner visa if in a long-term relationship – it’s possible.

 

In a long-term marriage or de facto relationship?

If you are in a long-term marriage or de facto relationship at the time you apply for an Australian partner visa, you may be eligible to be granted the permanent partner visa immediately after you are granted the temporary partner visa.

That means that you don’t have to wait until two years after you apply for the partner visas to be processed for the permanent partner visa.  It’s a great result, if you can get it.

What does the Immigration Department regard as a long-term relationship?

Basically, it’s three years, or two years if you have a child of the relationship at the time you apply for the partner visas.

At the time you apply for the partner visas you must have been married or in a de facto relationship (not just in a relationship) for at least these amounts of time.  You must also be able to prove this.

Will the permanent visa definitely be granted without waiting?

Unfortunately, no.  The authority for a Case Officer to grant the permanent partner visa immediately after the temporary partner visa for applicants in a long-term relationship is contained in Immigration Department policy, not in migration law.

This authority that Case officers have is known as a ‘non-compellable discretion’.

‘Non-compellable’ means that the Case Officer can’t be forced (by law) to do it.  ‘Discretion’, means that they can choose to do it, or not – they don’t have to immediately grant the permanent partner visa to an applicant that is in a long-term relationship.

What is Immigration’s usual practice?

In my experience, Case officers will usually grant the permanent partner visa immediately after the temporary partner visa to applicants that are in long-term relationships.

However, it’s possible that is my experience because when I’m representing an applicant who is in a long-term relationship I write to the Case Officer and point out to them Immigration’s policy for applicants in long-term relationships and request that the Case Officer exercise the discretion that is allowed to them under policy to grant the permanent as well as the temporary partner visa.

So far, that has always been successful.

 

So, if you are genuinely in a long-term marriage or de facto relationship at the time you apply for the partner visa, you have everything to gain, and little to lose by asking the Case Officer to grant the permanent as well as the temporary visas.

Feel free to contact me for a consultation if you need further information about this.

Regards.

Ross McDougall
Immigration Lawyer

www.rpmlawyers.com.au

Tel: 08 8528 9187

This information is correct at February 21st, 2019.  But, keep in mind that immigration law changes from time to time.

Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.

Partner visas – changes we can expect to see in 2019

Happy 2019 to all!

Looking to the year ahead, I’m expecting to see the following changes, at a minimum, to the processing of partner visa applications.

  • Pre-approval of Australian partner visa sponsors to be required before the partner visa applicant can lodge a partner visa application.  The legislation that introduces this was passed by the Australian parliament in late 2018.  It hasn’t commenced yet.  It must commence by June 2019.  People in Australia on short-term visas that are expiring will be significantly affected and some may need to leave Australia and apply from outside Australia.
  • A higher number of applications for partner visas overall.  Why? Because last year the migration intake to Australia was reduced by approximatley 40,000 places – mostly from the employer-sponsored and skilled visa categories.  Many people who may previously have been eligible for employer-sponsored or skilled visas may now consider the possibilities of applying for a partner visa.
  • The current long processing times for partner visa applications will continue to be a challenge for applicants, and possibly get longer.  For offshore partner visa applicants it’s currently taking on average 30 to 46 months to be processed for the temporary and permanent partner visas. For onshore partner visa applicants it’s currently taking on average 40 to 52 months to be processed for the temporary and permanent partner visas. The combined effects of pre-approval of sponsors and the potential for an increase in partner visa applicant numbers will almost inevitably result in an increase in the (already long) processing times.

What can potential partner visa applicants do about this?  My recommendation is to lodge the most complete and highest quality partner visa application possible.  Avoid ‘shortcuts’ and poor quality applications.  Good quality applications are still being approved and sometimes quicker than the current average processing timeframes.

Yes, a refused application can be reviewed by the Adminstrative Appeals Tribunal (AAT), but you want to avoid that path by lodging a successful application initially.  Current waiting times at the AAT for a case to be heard are now approaching two years from lodgement until hearing date – they have a huge backlog of cases (50,000+).

Feel free to contact me for a consultation if you need further information about this. Regards.

Ross McDougall
Immigration Lawyer

www.rpmlawyers.com.au

Tel: 08 8528 9187

This information is correct at January 17th, 2019.  But, keep in mind that immigration law changes from time to time.

Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.

How partner visa applications are processed is about to change.

Requirement for partner visa sponsors to be pre-approved is coming soon.

Some new partner visa legislation has recently passed through the Australian parliament and is now awaiting the Governor General’s assent to become law.

The Migration Amendment (Family Violence and Other Measures) Bill 2016 passed in the Senate on 28 November, 2018 (after being stalled in parliament for more than 2 years).

A significant effect of the new law will be to require pre-approval of Australian sponsors for partner visa applications and, probably, for prospective marriage visa applications, before the partner or prospective marriage visa application can be lodged.

What this means in practical terms is that partner visa applications (and probably prospective marriage visa applications) will not be able to be lodged until after the Australian partner’s visa sponsorship application has been lodged, processed and approved.

Currently, the Australian partner’s visa sponsorship application is lodged and processed after the partner or prospective marriage visa application has been lodged.

The new law will reverse that order of processing.

The final version of the Bill (new law) is not yet available. Once it is available, it will be possible to more accurately predict the effect of the new legislation.

However, the specific effect of the bill on visa applicants will not be fully known until the applicable changes to Migration regulations and policy are made. It is not currently known how far advanced the process of updating the regulations and policy is.

Who will be affected?

Of concern is the anticipated effect on those intending to lodge partner visa applications whilst onshore in Australia, especially those on visas with a relatively short validity period such as visitor visas; as processing of the Australian partner’s sponsorship application may take longer than the time that an intending partner visa applicant has left on their current visa.

The potential effect on partner visa or prospective marriage visa applicants who will lodge their visa application offshore (from outside Australia) is much less significant – as they are not in Australia in a ‘time-critical’ situation with an existing temporary Australian visa expiring.

Feel free to contact me for a consultation if you need further information about this. Regards.

Ross McDougall
Immigration Lawyer

www.rpmlawyers.com.au

Tel: 08 8528 9187

This information is correct at December 6th, 2018.  But, keep in mind that immigration law changes from time to time.

Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.

Can you appeal a partner visa refusal? Usually yes, but not always.

Partner visa application refused? You can generally appeal that refusal decision to the Administrative Appeals Tribunal (AAT).

The AAT will look closely at your partner visa application again and then make a new decision on your application. That new decision by the AAT could agree with the Immigration Department’s refusal decision (not good!) or disagree with the refusal decision and overturn it (good!).

The stages when partner visa applications can be refused

A partner visa application can potentially be refused at either:

  • the temporary partner visa stage – subclass 820 (application lodged onshore) or subclass 309 (application lodged offshore)

or

  • the permanent partner visa stage – subclass 801 (lodged onshore) or subclass 100 (lodged offshore)

 

In all refusals situations except for one, you can appeal a refusal decision to the AAT.

The one situation where you cannot appeal a refusal decision to the AAT is a refusal of a subclass 100 permanent partner visa application where the partner visa applicant was outside Australia at the time the subclass 100 refusal decicision was made.   There is no right of appeal in this situation.  That’s harsh.

How to avoid this

To avoid potentially finding yourself in this situation of a refusal of a subclass 100 visa application with no appeal right, if you are waiting for a decision on a subclass 100 application avoid travelling outside Australia until after you receive the decision.

That’s the safest option, and it ensures an appeal right if the subclass 100 application is refused.

Feel free to contact me for a consultation if you need further information about this. Cheers.

Ross McDougall
Immigration Lawyer

www.rpmlawyers.com.au

Tel: 08 8528 9187

This information is correct at October 30th, 2018.  But, keep in mind that immigration law changes from time to time.

Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.

Partner Visa application processing times – what’s going on?

 

Partner visa application processing times have increased.

I’ve noticed in the last 6 to 9 months a substantial increase in the Immigration Department’s published average processing times for onshore and offshore partner visa applications and for Prospective Marriage Visa applications.

 

What are the published processing times?

The Immigration Department publishes online its current average processing times here

These average processing times are updated by the Department regularly.

As at today – October 1st, 2018 – the department’s average processing times for the following visa application types are:

  • Offshore temporary partner visa (subclass 309) – 13 to 17 months
  • Onshore temporary partner visa (subclass 820) – 20 to 25 months
  • Offshore Prospective marriage visa (subclass 300) – 13 to 17 months

The recent increase in average processing times for subclass 820 onshore partner visa applications has been particularly significant – it has almost doubled.

I suspect that a reason behind this may be the Immigration department’s possible preference for partner visa applicants to apply for a partner visa from offshore, rather than from onshore.

Even more curiously, the current average processing times for the permanent partner visa stage have also increased markedly to:

  • permanent partner visa processing stage applied offshore (subclass 100) – 17 to 23 months
  • permanent partner visa processing stage applied onshore (subclass 801) – 18 to 25 months

 

Are these average processing times accurate?

Well, they are averages.  I’m finding that virtually all of our clients’ partner visa applications are processed more quickly than this – some much more quickly.

However, we do have a couple of client’s partner visa applications that are getting close to these average times.

Overall, there appears to be no logic to it.  Partner visa applications no longer appear to be being processed by the department in chronological order (in the order that they are received).

 

Can the processing be speeded up?

Without a doubt the best thing to do to potentially streamline processing is to lodge a complete, and well-prepared partner visa application.

This reduces (and often eliminates) the need for the Case Officer processing the application to request more evidence or documents from the visa applicant or the sponsor – which all takes time and creates delays.

 

RPM Lawyers only lodges complete and well-prepared partner visa applications.

Therefore, our clients’ applications are normally always processed quicker than the average processing times.  But please note, we can’t, and we don’t guarantee that – we just know that it normally happens.

Feel free to contact me for a consultation if you need further information about this. Cheers.

Ross McDougall

Immigration Lawyer

www.rpmlawyers.com.au

Tel: 08 8528 9187

This information is current at October 1st, 2018 – note that immigration law changes regularly.

Information (or the lack of it) contained here does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.

A drop in partner visas granted and an increase in visa refusals in 2017/18.

A 15% drop in Partner Visas granted in the last year

‘The Australian’ newspaper reported on July 13th, 2018, that Australia’s annual permanent migration intake (for the year ending June 30th, 2018) has fallen by more than 10 per cent to less than 163,000 people. This is the lowest level for more than a decade.

The report states that the largest fall was in the family stream — predominantly spousal (partner) visas — which was slashed by almost 15 per cent to 47,732.

That’s a significant reduction in the number of parter visas granted.

Why the reduction in the number of partner visas granted?

It’s certainly not due to a drop in the number of applications.

The cut to the number of visa grants in 2017-18 has been attributed to new integrity measures applied to the system following the discovery of a high number of fraudulent claims being made
every year.

The Australian newspaper reports that it has confirmed that the integrity measures resulted in a 46 per cent increase in visas being refused and a further 17 per cent rise in applications being withdrawn due to the greater scrutiny. The number of applications processed remained at similar levels.

A 46% increase in visas being refused – that’s a very large increase!

This increase in visa refusals explains the recent huge increase in the backlog of cases at the Administrative Appeals Tribunal (AAT) – the AAT is where you can have a visa refusal decision reviewed.

I’ll be writing another blog post on the AAT backlog soon.

What to make of this?

Our experience is that well-prepared partner visa applications for genuine couples that are thoroughly supported by strong evidence are still being approved.  Processing times have increased though.

So, this is not the time to lodge a poorly prepared or weakly evidenced partner visa application as, now more than ever, it will quite probably be refused unfortunately.

 

Feel free to contact me for a consultation if you need further information about this. Cheers.

Ross McDougall

Immigration Lawyer

www.rpmlawyers.com.au

Tel: 08 8528 9187

This information is current at July 18th, 2018 – note that immigration law changes regularly.

Information (or the lack of it) contained in this blog post does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.

 

Applied for a partner visa in Australia and now need to travel?

Partner visa applicants in Australia and Bridging Visas

When you make a valid application for a partner visa in Australia (subclass 820/801) you will be granted a Bridging Visa A (BVA).

The BVA commences when the visa you held at the time you applied for the partner visa expires.  The BVA is granted to you at the time you apply for the partner visa. It sits in the backgound inactive until it automatically activates when your previous visa expires.

The processing times for partner visa applications are long. Applicants often need to travel overseas from Australia for a short time, during the partner visa processing period.

If you are in that situation, you must apply for and be granted a Bridging Visa B (BVB) before you leave Australia. Don’t leave home without one!

What’s a bridging Visa B?

A BVB allows you to leave Australia and, more importantly, to re-enter Australia whilst your partner visa application is being processed.

When you return to Australia, your BVB continues and remains valid until you receive a decision on your partner visa application.  Your BVA does not re-activate and it doesn’t need to.

If your BVA had full work rights in Australia attached to it (which it normally would do) then those full work rights are transfered to your BVB.

The ‘travel authority’ attached to your BVB (the permission to leave and re-enter Australia) will normally expire after you return to Australia. However, the BVB itself will not normally expire at the same time the ‘travel auhtority’ attached to it expires.

Complicated? Unfortunately yes, it can be.

The thing that needs to be clear is this – whilst your partner visa application is being processed, don’t leave Australia whilst holding an active BVA if you want to return to Australia.  You should always apply for and be granted a BVB first, if you want to return to Australia.

Feel free to contact me for a consultation if you need further information about this. Cheers.

Ross McDougall

Immigration Lawyer

www.rpmlawyers.com.au

Tel: 08 8528 9187

This information is current at June 15th, 2018 – note that immigration law changes regularly.

Information (or the lack of it) contained in this blog post does not take into account anyone’s individual circumstances and should not be relied upon as immigration assistance or legal advice.

Government’s partner visa application charges to increase?

Visa application charges increasing. Lodge a partner visa application now, or later?

If you are ready to lodge a strong partner visa or prospective marriage visa application, you should think of doing so before July 1st, 2018.

Why?

Because the Australian government is likley to increase the visa application charge from July 1st.

Will it be a big increase?

In some recent years there have been very large increases in the visa application charges on July 1st. However, I’m not expecting it to be a big increase this year – probably a few percent.

But, if you are not going to be ready to lodge a well-prepared, well-evidenced partner visa application by July 1st, you should consider waiting until you can lodge a strong application (if you are able to wait – everybody’s personal situation is different).

It’s no use rushing to lodge an application that’s not very stong just to avoid a small increase in the visa application charge.  Better to wait (if you can), pay the higher visa application charge and lodge a strong application with a better chance of success.

Feel free to contact me for a consultation if you need further information about this. Cheers.

Ross McDougall

Immigration Lawyer

www.rpmlawyers.com.au

Tel: 08 8528 9187

This information is correct at May 18th, 2018.  But, keep in mind that immigration law changes from time to time.

Applied for a Prospective Marriage Visa and marry before visa granted? – not recommended, but hopefully not fatal.

A Prospective Marriage (subclass 300) visa (often called a fiance’ visa) is a visa that entitles the holder to travel to Australia, marry their fiance(e), and then to lodge a partner (subclass 820/801) visa application in Australia. You must marry and lodge the partner visa application within 9 months of being granted the subclass 300 visa.

Ocassionally, the engaged couple marry before their Prospective Marriage Visa is granted.  Unfortunately, their marriage makes them ineligible for grant of the Prospective marriage visa.

What to do?

Well, this scenario is definitely not recommended.  But, it you find yourself in this situation, their is provision in Migration policy to allow the couple to be taken to have also applied for an offshore partner visa, due to their marriage.  The Government’s Visa application charge for both visa types is the same.

An extract from the Immigration Department’s Policy:

If, after a subclass 300 application is made but before it is decided, the couple change their plans and marry outside Australia, subclass 300 time of decision criteria cannot be satisfied.

However, under regulation 2.08E, once the couple has notified the department of their marriage (as would be required of them by s104 of the Act), and provided the marriage is valid for visa purposes, the subclass 300 applicant is taken to have also applied for a sublcass 309/100 Partner visa.

In these cases, no additional Visa Application Charge is payable; the amount paid for the VAC for the subclass 300 visa is taken to be payment of VAC for the partner visa. The applicant should be advised to withdraw, in writing, the subclass 300 application or the visa will be refused.

 

Feel free to contact me for a consultation if you need further information about this. Cheers.

Ross McDougall

Immigration Lawyer

www.rpmlawyers.com.au

Tel: 08 8528 9187

This information is correct at April 24th, 2018 – but keep in mind that immigration law changes from time to time.

Prospective Marriage Visa holder – best time to apply for a partner visa?

A Prospective Marriage (subclass 300) visa (often called a ‘fiancee’ visa) is a visa that entitles the holder to travel to Australia, marry their fiance(e), and then to lodge a partner (subclass 820/801) visa application in Australia. You must marry and lodge the partner visa application within 9 months of being granted the subclass 300 visa.

Given that there is 9 months to marry and then to lodge the partner visa application, when is the best time after marrying to lodge the partner visa application?

Like many things in immigration law – it depends!

Best time to lodge the partner visa application

The subclass 820/801 application must be lodged within the 9 month validity period of the subclass 300 visa.

The 820/801 application doesn’t need to be lodged straight after a couple marry. Particularly if the couple marry early in the 9-month period.

In fact it’s better to wait to lodge the 820/801 application if gathering more evidence of the relationship is needed.

The Bridging Visa A that is associated with the 820/801 apoplication won’t begin any earlier if the 820/801 is lodged earlier. The Bridging Visa A doesn’t become active until the subclass 300 visa expires.

Work rights aren’t relevant here. The applicant has full work rights in Australia whilst holding the subclass 300 visa and whilst their Bridging Visa A is active.

Medicare when holding a prospective marriage visa

However, eligibility for Medicare won’t commence for someone on a subclass 300 visa until they lodge the application for the 820/801 visa.

Overall, I feel the main consideration is – when in the 9 month period can the applicant lodge the strongest application for the 820/801 visa? If that’s straight after the marriage, well and good. However, for some applicants, it won’t be.

Feel free to contact me for a consultation if you need further information about this. Cheers.

Ross McDougall

Immigration Lawyer

www.rpmlawyers.com.au

Tel: 08 8528 9187

This information is correct at March 8th, 2018 – but keep in mind that immigration law changes regularly.

Court decides that romantic love is not necessary to prove a relationship is genuine and continuing for a partner visa.

Romantic Love not necessary to show a genuine and continuing relationship? – The Federal Circuit Court thinks so.

Judge Riley of the Federal Circuit Court recently made an interesting decision recently in an appeal of a partner visa refusal.

The name of the case is Ali v Minister for Immigration & Anor [2018] FCCA 121 (22 January 2018)

A partner visa application had been refused by the Immigration Department.  That refusal decision was reviewed by the Administrative Appeals Tribunal (AAT) who affirmed (agreed with) the department’s refusal decision.

The AAT’s decision was then appealed to the Federal Circuit Court.

Judge Riley set aside the AAT’s decision and sent the case back to the AAT to make a new decision on it “according to law”.

The Judge made the following comments as part of her decision:

78. I would add that the Tribunal in this case seems to have considered that a relationship can only satisfy the definition of a married relationship if it is based on Western notions of romantic love. Obviously, there are millions of people around the world who are in arranged and other marriages that are genuine and continuing, but which are not based on romantic love.

79. The Tribunal also seems in this case to have considered that a married relationship is genuine and continuing only if it accords with an inner suburban, middle class aspiration of equality and sharing of financial and other information. However, obviously, most genuine marriages around the world to this day have an enormous power imbalance and many genuine marriages, even in Australia, do not involve a complete sharing of financial and other information. That is apparent from sitting in the family law jurisdiction of this court.

Read the full case

You can read the full case here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2018/121.html

 

Feel free to contact me for a consultation if you need further information about this. Cheers.

Ross McDougall

Immigration Lawyer

www.rpmlawyers.com.au

Tel: 08 8528 9187

7/2/2018

Pre-approval of partner visa sponsors may be coming

The government has been attempting to pass a new law through parliament – so far unsuccessfully – which will require the Australian sponsor of a partner visa applicant to be ‘pre-approved’ as a sponsor.

Under the new law, only after pre-approval of their sponsor would the partner visa applicant be able to lodge their partner visa application.

Sponsors with a significant criminal record or who have sponsored before may not be ‘pre-approved’ as sponsors. This differs from the current process in that the sponsor at the moment is approved as a sponsor, or not, after the partner visa application is lodged.

The full effect of this new law, if passed by parliament, is as yet not completey understood.

‘Pre-approval’ of sponors is a process that will no doubt take a considerable amount of time – possibly many months.

As part of the approval process, sponsors need to provide police checks from every country they have spent a year or more in, in the last ten years.  Obtaining these police checks takes time.  Then, the immigration department has to process the sponsorship ‘pre-approval’ application.  Again, that will take time.

Applying from Outside Australia

For a partner visa applicant that is applying from outside Australia this will be an added frustration and delay – but not critical for them.

Applying from within Australia

However, for a partner visa applicant that is applying from inside Australia, it could be problematic.

Many applicants from within Australia are on temporary visas that are expiring – visitor, student, or 457 visas, for example.  They need to lodge their partner visa before their temporary visa expires. It’s common for applicants to lodge the parner visa application just before their temporary visa expires.  This maximises the amount of time they have been in the relationship before they apply for the partner visa.

What then will happen to intending partner visa applicants in Australia whose temporary visa is expiring whilst their sponsor is being processed for ‘pre-approval’?

There is currently no answer to that question. We’ll have to wait and see.

However, it’s not in the Immigration Department’s best interests for partner visa applicants in Australia to become unlawful whilst waiting for pre-approval of their sponsors.  This would create a big administrative headache for the department.

Stay tuned for further details!

Ross McDougall

Immigration Lawyer

rpmlawyers.com.au

19/1/2018

300 couples have applied to register their relationship in South Australia so far.

News from South Australian Births, Deaths and Marriages Office.

Relationship register – Since the launch of the South Australian Relationship Register in August more than 300 couples have applied to have their relationship registered. CBS is looking forward to receiving more applications and performing more ceremonies in 2018! Find out more about registering a relationship.

Same sex marriage –The right to marry under Australian law is no longer determined by sex or gender identity. Same sex couples may now register an intention to marry with CBS.

Regards,

Ross McDougall

Immigration Lawyer

www.rpmlawyers.com.au

17/12/2017

Changes for visa applicants in same-sex relationships following the legalisation of same-sex marriage.

This is a news release from the Immigration department following on from the legalisation of same-sex marriage in Australia.

Changes for visa applicants in same-sex relationships

Important information for visa applicants following the legislation of same-sex marriage.

From 9 December 2017, you can apply for a visa as your partner’s ‘spouse’ if you are in a same-sex marriage following the legalisation of same-sex marriage in Australia.

Under the changes, if you are in a same-sex marriage you can apply for a visa as your partner’s ‘spouse’, rather than as their ‘de facto partner’.

The changes will apply to Partner visas (subclasses 100, 309, 801 and 820) and to all other visas where you can include your spouse in your application.

You can also apply for a Prospective Marriage visa (subclass 300) if you are in a same-sex relationship and genuinely intend to marry your prospective spouse in Australia.

 

This is a welcome development for potential partner visa applicants in same-sex relationships.

Feel free to contact me to arrange a consultation if you have any questions or require further information about this development.

Cheers.

Ross McDougall

Immigration Lawyer

www.rpmlawyers.com.au

11/12/2017

Partner visa applications are now online only – no paper.

The Immigration Department has announced – with very little warning – that from November 18th, 2017, all Partner and Prospective Marriage Visa applications must be lodged online.

This change applies to all partner and prospective marriage visa applications lodged in Australia or overseas.

Prior to this announcement, applicants had the option of lodging an online application or an application on paper which they would post to the department in Australia or overseas.

The effect of this

This change won’t affect our practice – we have lodged only online partner and prospective marriage applications for the last four years or so.  

However, it will potentially significantly affect applicants who are attempting to prepare and lodge their partner visa applications themselves. Many of these applicants may not be confident using computers – or even have a computer.  Additionally, the Immigration Department’s online lodgement software is unfortunately not easy or strightforward to use.

This change is no doubt an efficiency measure by the department. However, it may have unintended consequences for applicants attempting to prepare and lodge partner and prospective marriage visa applications themselves.  Take care! 

Ross McDougall

Immigration Lawyer

RPM Migration Lawyers

21/11/2017

Sponsor the same person for a partner visa twice? Yes.

In my work with couples applying for a partner visa and sponsorship, over the years you get to see a lot of different partner visa scenarios.

A scenario that I see from time to time is this:

  • a couple are in a de facto relationship or a marriage
  • the Australian citizen or permanent resident sponsors their partner for a partner visa
  • unfortunately, the marriage or de facto relationship later breaks down
  • the breakdown occurs before the grant of the permanent partner visa
  • some time later, the couple overcome their differences and get back together again.

In the above scenario, can the Australian partner sponsor their partner for a partner visa again? Normally, yes!

A new partner visa application would need to be lodged – most likely from outside Australia.

The couple would again need to provide evidence that their ‘new’ resumed marriage or de facto relationship is genuine and will be ongoing.

Bascially it is recognition that relationships are complex and the course of love does not always run smoothly.

An interesting aspect of this scenario is that the sponsor would probably not be barred from sponsoring their former spouse or de facto partner for five years from the date of the original sponsorship.  Sponsoring the same person again should not ‘count’ as a new sponsorship, for calcultaing the five year bar.

Because of the way the relevant Migration regulation is written, the five year sponsorship bar should only come into effect if a sponsor was to sponsor ‘another’ person within five years.

Feel free to contact me for a consultation if you need further information about this. Cheers.

Ross McDougall

Immigration Lawyer

www.rpmlawyers.com.au

12/11/2017

Permanent partner visa processing. DIBP no longer contacting applicants

Until recently, the Department contacted applicants to ask them to provide updated evidence for their permanent partner visa processing. Not any more.

Two-step process

Applying for an Australian partner visa is a two-step process.

First, an application is lodged for a temporary partner visa (subclass 820 or 309) and for a permanent partner visa (subclass 801 or 100).

The application for the temporary partner visa is then processed by the Department. It’s normally granted (or refused) within 12 to 18 months of the visa application being lodged.

Applicants are eligible to be considered by the department for grant of the permanent partner visa 2 years after the date they applied for the temporary and permanent partner visas.

Until recently, 22 months after the partner visa applications were lodged, the Department would send a letter to the applicant (or their registered migration agent) by post or by email, advising the applicant that they would soon be eligible to be considered for the permanent partner visa. The letter advised the applicant and their sponsor to now send the Department updated evidence of the genuine nature of their relationship, and that their relationship was ongoing.

Recently the Department stopped sending these letters to partner visa applicants. It’s not clear why.

It’s now up to you to act

So, it is now up to partner visa applicants, and/or their migration agents, to remember to provide updated evidence of the relationship to the Department. This should be done at the 2-year point after applying for the partner visas. The department will no longer ask or remind partner visa applicants to do so.

Be careful not to underestimate this

Providing evidence for processing of the permanent partner visa has also become a “mini” partner visa application in the eyes of the Department.

I recommend that you don’t underestimate the process as refusals of permanent partner visas are not uncommon unfortunately.

Consider getting advice if you need to

Feel free to contact me for a consultation if you need further information about this process and development.

Cheers

Ross McDougall

Immigration Lawyer

rpmlawyers.com.au