Australian partner migration: de facto visa

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The unmarried partner visa is absolutely essential for anyone who wishes to live in Australia by virtue of their de facto relationship with an Australian citizen or legal permanent resident. The initial application is normally lodged offshore; however, if the foreign partner is already in Australia, they may be eligible to switch into the partner visa category from within the country.

Immigrating to Australia as a partner is essentially a two-step process. The subclass 309 provisional partner visa (subclass 820 if applied onshore) can be considered the first step towards residency in Australia. A successful applicant will be given permission to stay in Australia for up to two years with an option to apply for the permanent partner visa (subclass 100) provided the relationship continues to exist by the time the initial partner visa is due to expire. The subclass 309/820 temporary Australian unmarried partner visa gives the right to work in Australia and enrol in Medicare, whereas the permanent partner visa gives extra rights, such as the right to claim certain benefits and to apply for Australian citizenship.

There are certain eligibility requirements that the foreign partner and their Australian sponsor must meet in order to reunite in Australia under the partnership policy. Firstly, the sponsor must be an Australian citizen or legal permanent resident over the age of eighteen at the time of application. Eligible New Zealand citizens may also sponsor a foreign partner for the subclass 309/820 visa to live in Australia. To be considered an eligible New Zealand citizen, the sponsor must have resided in Australia on the 26th February 2001 and held a Subclass 444 special category visa, or resided in Australia for at least 12 months of the two years before the 26th February 2001, or was issued a special certificate under the Australian Social Security Act of 1991 stating that they were permanently residing in Australia on a particular date. All other New Zealand citizens that do not meet the residency requirements must sponsor their partner for a subclass 461 visa.

You and your partner must have been living together in a relationship akin to marriage for at least 12 months. De facto partners are treated the same as all other partners and, like married couples, will be required to demonstrate to the satisfaction of the examining DIBP (formerly DIAC) officials that they have a “bona fide” subsisting relationship. The 12-month cohabitation requirement may be waived if the couple have registered a de facto relationship with the relevant state or territory Births, Deaths and Marriages agency in Australia (or other similar agencies, if registered offshore) where such registration is allowed by state Law; or have children together.

There are other eligibility requirements beyond these basics and if a case is complex, it is best left to experts. The eligibility requirements may involve checks on medical and criminal records, and as such should be relatively simple to comply with as most people know in advance whether these records will make them ineligible for the partner visa. Others are not so simple to get right; for example, there must be no consanguinity (blood relationship) between the partners, even going back several generations; or prior sponsorship applications lodged by the Australian citizen or permanent resident within the last five years, including situations where sponsors themselves were sponsored for a fiancee, spousal or partner visa. Those who have previously sponsored two other partners for migration to Australia are normally barred from sponsoring more people for entry into Australia under the partnership policy. There are other limitations on who may be a sponsor. For example, if a child is included in the visa application, the sponsor must have no convictions relating to a child. The sponsorship will normally be refused if the sponsor has a conviction or an outstanding charge for an offence against a child.

Normally, foreign partners must wait at least two years before they can apply for full residency in Australia. However, there are special provisions in the immigration rules under which a permanent partner visa may be granted without the two year wait on the subclass 309/820 visa. Essentially, the conditions under which an applicant can proceed to a permanent visa are based on length of the relationship prior to application. If the relationship has already lasted more than three years (two years if there is a child of the relationship) then a permanent subclass 100 visa may be granted.

There is a non-refundable fee payable to the Department of Immigration and Border Protection (DIBP) for both onshore and offshore applications, whether the visa is granted or not, or if the applicant decides not to continue with the process. The fees are payable in total at the point of application and will cover all family members included in the application.

Contact our Australian partner visa team for a free consultation

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