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

 

 

Registering a Relationship in South Australia is possible.

South Australian Relationship Register commences

The South Australian Government has finally enabled male-female and gay couples to register their relationship in South Australia. The new South Australian relationship register commenced on August 1st, 2017.  It’s been a long wait and it’s a welcome development!

Here’s how it works

You can apply if you are over 18 years of age and in a relationship with another person as a couple, provided at least one person lives in South Australia. Couples may apply irrespective of their sex or gender identity.

Your relationship cannot be registered if you or your partner are married, already in a registered relationship, in a relationship as a couple with another person, or related by family.

Applications must be accompanied by completed statutory declarations witnessed by an authorised person and the application fee of $108.

Both persons in the relationship must apply

The earliest your relationship can be registered is 28 days after lodging your complete application and payment of the fee.

It’s not a requirement that you have a ceremony to register your relationship. However, you may choose to, either at the Registry Office or at another location.

You can either order a standard certificate or commemorative certificate package.

 

Feel free to contact me for a consultation if you need further information about this long-awaited new development and how registering your relationship could benefit a partner visa application.

Cheers

Ross McDougall

Immigration Lawyer

rpmlawyers.com.au

 

De factos can register their relationship until their partner visa decision.

When do you need to register your de facto relationship for registration to be considered in your partner visa application?

Some de facto couples who have not been together as de factos for 12 months at the time of applying for their partner visa choose to register their de facto relationship (with a State or Territory government).  Registration can increase the chances of success of the partner visa application.

Migration Regulation 2.03A(3) states that if an applicant applies for a Partner visa on de facto grounds and cannot show compelling and compassionate circumstances for the grant of the visa, the Minister for Immigration must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.

However, Migration Regulation 2.03A(5) provides that r.2.03A(3) does not apply if the de facto relationship is a relationship that is registered under a law of an Australian State or Territory government.

Notably, there is no requirement in the Migration Regulations for the registration of the relationship to have taken place prior to the date of the visa application.

The registration of a relationship can satisfy r.2.03A(5) if it takes place at any time up until the time of decision, as long as it continues at that time.

The Immigration Department’s policy states the following in relation to Regulation 2.03A –

Unlike regulation.2.03A(3) which explicitly requires the 12 month relationship criterion to be met at the time of visa application, regulation 2.03A(5) is silent on when the relationship must be registered. As such, an applicant who registers their de facto relationship after the application is made but before it is decided is taken to have met regulation 2.03A(5).

So, it is best to register your relationship as soon as possible, if you need to register your relationship.

However, it can be worthwhile registering your relationship right up until the date that a decision is made on your partner visa application – that date of decision can be 12 to 15 months after the date you applied for the partner visa.

Feel free to contact me for a consultation if you need information about this. This information is accurate at July 14th, 2017, but Migration law changes regularly.

Ross McDougall

RPM Migration Lawyers

rpmlawyers.com.au

Sponsor two different partners for Australian partner visas in your lifetime? – Yes.

Multiple partner sponsorships – it’s possible.

Ross McDougall Immigration Lawyer.

At most, a person can have two different sponsorships of a spouse, de facto partner, or prospective spouse (fiancé) approved.

But, the law states that a person who has sponsored a person as a spouse, de facto partner, or fiancé cannot have another sponsorship approved under any of these visa categories until at least 5 years after the first visa application was made.

Additionally, if you yourself have been sponsored as a spouse, de facto or fiancé, you cannot sponsor a partner under any of those visa categories until at least 5 years after their own visa application was made.

These requirements can be waived if there are compelling circumstances affecting the sponsor. Getting a ‘waiver’ due to compelling circumstances is possible, but difficult.

How the 5-year period is calculated.

If you sponsored another person (or were sponsored yourself), the 5 year period between the first sponsorship and your current sponsorship is calculated from the date on which the first visa application was made to the date of decision of your current sponsorship.

Approval/refusal of your new sponsorship is a time of decision criteria for the new visa application. It is only at the time of decision on the new visa application that the sponsorship is approved.

Here’s an example of how it works (from the Immigration Department’s policy and guidance document that Immigration Case Officers refer to):

Example
An Australian citizen has previously sponsored a spouse; the spouse application was made on 1/1/94; the sponsorship was approved and a BC-100 visa was granted.
The marriage has now broken down and the Australian citizen sponsors another partner, this time for a Prospective Marriage visa (TO-300); the application was made on 1/10/98 (that is, 4 years 9 months between the first and second applications).
Processing takes 6 months to complete; the final decision is made on 1/3/99; as 5 years has now elapsed since the first application was made, the current sponsorship may be approved.

 

So yes, you can potentially sponsor again before the 5 years is up.  However, this is not a ‘risk-free’ strategy.

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

 

Ross McDougall

RPM Migration Lawyers

rpmlawyers.com.au

 

Partner visa refused. Appeal? Apply again? It depends!

Ross McDougall Immigration Lawyer.

If your partner visa application has been refused, you often need to decide whether to appeal, or to apply again.

It’s usually possible to have a refusal decision reviewed by the Administrative Appeals Tribunal (AAT).

An AAT Tribunal member will look at your partner visa application again.  They make a new decision about the factor your application was refused on. The Tribunal may agree with the refusal decision of the immigration department.

Or, they may disagree with the refusal decision, change the decision, and send your application back to the department for further processing.

Apply Again?

If you have applied in Australia for a partner visa and the application has been refused, you cannot apply again from within Australia for a partner visa.  You would have to go offshore (outside Australia) to lodge a new partner visa application.

However, if you lodged an offshore partner visa application and it was refused you could apply again from offshore.

Appeal?

But, it can be a better strategy to appeal that refusal decision to the AAT.  When is it better to appeal? – when there is a good chance of success for the appeal. Sometimes there has been an error made in the refusal decision and this can be changed on appeal.

But, that’s not always the case.

Some refusals decisions are very difficult to have changed on appeal.  For example, if you lodged a partner visa application in Australia and at that time you were unlawful or had held a bridging visa for more than 28 days, then you have what is called a ‘schedule 3’ problem.

Yes, it can be possible for ‘schedule 3’ cases to be successful at the Tribunal, but many are not.

If you are in this situation it can be better to leave Australia and lodge a new partner visa application from offshore.  The outcome is then likely to be more certain. However, it all depends upon the facts of your particular situation.

So, you should get experienced advice when deciding whether to appeal a refusal or to apply again. Everybody’s situation is different.  Sometimes it’s definitely best to appeal, other times it’s best to apply again.

I can assist you to make that decision, with honest, accurate advice.

Feel free to contact me to arrange a telephone or a face-to-face consultation.

Ross McDougall

Immigration Lawyer

rpmlawyers.com.au

Second stage of partner visa applications – permanent residency.

Married and de facto at same time.

Don’t be offshore when your subclass 100 decision is made.

Recently I’ve noticed an increase in clients coming to see me who have had their permanent partner visa application refused.

When you apply for a partner visa you are actually applying for two separate partner visas:

  • the temporary partner visa (subclass 820 or 309)

and

  • the permanent partner visa (subclass 801 or 100).

Two years from the date you apply for the partner visas you are considered for grant of the permanent partner visa.

At that time you are asked to provide more evidence that your relationship is still genuine and continuing. It’s like completing a ‘mini’ partner visa application again.

Currently (at January 2017) it’s taking the immigration department a year or more to process the permanent visa stage of a partner visa application.  That’s incredibly slow!

So, it is often now around three years from the time you applied for the partner visa(s) until the grant of the permanent partner visa.

However, the immigration department has obviously gotten tougher in their decision making around permanent partner visas.

So, my recommendation to you is – don’t underestimate the second stage partner visa process. 

You were granted the temporary partner visa. Great!

However, that doesn’t mean that you will almost automatically be granted the permanent partner visa.  You need to prove to immigration all over again that you are still in a genuine and continuing partner relationship. Evidence, evidence, evidence, is needed.

There is also a fatal trap that most people don’t know about.

If you applied from offshore (outside Australia) for the partner visas (a subclass 309/100 application) you must be offshore at the time of the decision on the temporary partner visa application.

However, you can either be onshore (in Australia) or offshore at the time the decision is made on your permanent partner visa application.

But, if you permanent partner visa application is refused you can only appeal that refusal decision to the Administrative Appeals Tribunal  if you were onshore at the time the refusal decision on your permanent partner visa application was made.

If you were offshore at the time of the refusal decision for your subclass 100 permanent partner visa application then you have no right to appeal that decision.  Is this fair?  No.  Can anything be done about it? Usually, no.

So, the moral of this story is that if you have any doubt at all that your subclass 100 permanent partner visa application may be refused, then make sure that you are onshore when the decision is made. At least then you can have the refusal decision reviewed by the Tribunal.

Feel free to contact me if you have been refused and need advice.  Take care out there!

Cheers. Ross McDougall.  Immigration lawyer.