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Spouse Visas

Partner Migration to Australia

Migration into Australia is dependent upon obtaining a visa. There are many different types of visas available. For example ‘Family Stream Migration’ is the relevant category that enables the reunion of spouses, children and dependents. Family migration is a particularly important area – in the period between 2002-2003 43,200 applications for family related visas were lodged counting for nearly half of the overall number.

Sponsorship

Since the introduction of legislative changes in July 2002, it is necessary that all persons applying to migrate to Australia under the Family stream must be sponsored. Sponsorship requires the person identified as the sponsor to provide a written undertaking stating that they will provide support to the applicant during their first two years in Australia. In order to be eligible a sponsor must be an Australian citizen, permanent resident or an eligible New Zealand citizen.

Partner Migration

Partner migration is a sub-group of family migration. Applicants under partner migration must be sponsored by their partner in Australia or in the event that their partner is under 18 years of age, applicants may be sponsored by their partners' parents. However partner migration itself is further divided into three broad areas which include, spouses, fiancees and interdependent partners.

Spouse or Defacto Spouse migration (Subclasses 309/100 application outside Australia; Subclasses 820/801 Application inside Australia) – Applicants for a spouse visa must be married or in a de facto relationship with their sponsor. In order to be recognised the relevant relationship must meet the following basic requirements.

• A marriage must have been made in accordance with the Marriage Act 1961 (Cth).
• De facto relationships are recognised where the partners have lived in a spouse like relationship preferably for at least 12 months at the time of application.

Importantly the following relationships are not recognised:

• Polygamous marriages;
• marriages between close relatives and
• marriages where one member is under the age of 18.

It is essential to any application that the relationship be considered genuine.

In relation to marriage the applicant and spouse must prove that:

• they have a commitment to a shared life as spouses;
• the relationship is genuine and continuing; and
• they live together, or at least do not live apart on a permanent basis.

With regard to a de facto relationship it is necessary that the applicant and sponsor have been in a spouse like relationship for 12 months immediately prior to applying for a spouse visa.

Applications for a spouse visa must undergo a two-stage process. This process involves firstly applying for a temporary visa and if successful, later subsequently applying for a permanent visa two years later.

• Stage 1 – This involves assessment of eligibility. Assessment is based around character clearances and a medical examination.
• Stage 2 – The main focus is upon whether the relationship has been genuine and continuing.

If a relationship ends whilst a person has a temporary visa the Immigration Department must be informed immediately.

Prospective Marriage Visa (Fiance Visa) – This visa allows Australian citizens or permanent residents to sponsor a fiance to immigrate to Australia. There must be a genuine intention to marry on behalf of both partners.

Applications for a prospective marriage visa must be made from overseas. If the application is deemed satisfactory, the applicant shall be granted a temporary fiance visa that sanctions entry into Australia for the wedding. The wedding must take place after the applicant’s first entry into Australia and before the expiration of the visa - a period of 9 months. The applicants must prove:

• An intention to live with their partner as spouse;
• They have met and are personally known to each other and
• That the Immigration Department is satisfied that both partners will turn 18 before the period within which the marriage is to take place.

Once marriage is completed, a provisional spouse visa may be applied for. This visa will last for two years at which point, subject to approval that the relationship is genuine and lasting, a permanent spouse visa will be granted.

If the marriage ends before a permanent visa has been granted, the Immigration Department must be informed immediately.

Interdependent Partner Migration Visa – This visa is available to certain prospective partners whose situation does not fall within a spouse visa or fiance visa. Interdependent relationships include, but are not restricted to, same sex couples. As with other partner visas it is necessary to show that the relationship is genuine. It is also necessary to prove the following:

• Both partners share a mutual commitment to a shared life at the exclusion of any other interdependent relationships;
• Both partners live together on a permanent basis and
• The interdependent relationship has lasted for a period of 12 months prior to application.

These aspects are especially important to interdependent migration because assessment does not depend upon a marriage certificate. Application for an interdependent visa is subject to a two-stage process.

The first stage of the process involves the consideration of the interdependency temporary visa application. A temporary visa will be in effect until a decision is made regarding an application for a permanent visa.

The stage of processing an interdependency permanent visa will begin two years after an applicant lodged their initial application. Applicants are required to provide evidence that the relationship is genuine and lasting.

If the relationship ends during the temporary visa phase, the Immigration Department must be informed immediately.

Domestic Violence Provision

The domestic violence provision of Australia’s migration policy allows people applying for permanent residency to continue with their application after the breakdown of their relationship on the grounds of domestic violence.

People applying for the following visa classes may be eligible under the domestic violence provision:

• Spouse (offshore and onshore)
• Interdependency (offshore and onshore)
• Prospective marriage

Applicants hoping to benefit from the domestic violence provision must provide evidence that they have been victims of domestic violence committed by their Australian spouse of partner and that the relationship was genuine and lasting until it ended.

Conclusion

The conditions that regulate the issue of partner visas are very important. In order to have the best chance of successfully obtaining the relevant visa the necessary requirements should be acknowledged well in advance. Despite this however a number of unforseen pitfalls may remain that can adversely affect an application. Faram Ritchie Davies can advise on all aspects of partner migration.

Copyright © 2003 Faram Ritchie Davies Lawyers of Shepparton, Victoria, Australia
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