Parties who are married must establish the fact and prove that they are in a genuine and continuing with a commitment to leading a shared life to the exclusion of all others and must live together or do not live apart on a permanent basis relationship. A marriage has to be recognised in the applicant’s home country and Australia and generally parties to the marriage must be at least 18 years of age. There are some exceptions. Visa applicants who lodge an off-shore application must be off-shore at visa grant time.
Parties who are not married but can establish that they have been in a 12 month relationship (and usually co-habiting) or who meet other prescribed criteria (see Registered relationships below), immediately prior to lodging an application, can apply for a sponsored partner visa. Visa applicants who lodge an off-shore application must be off-shore at visa grant time.
The absence of the formality of a legal marriage requires the parties to provide a variety of evidence establishing their relationship. Failure to fully explain their relationship or failure to meet the 12 month pre-existing relationship or to meet alternative criteria (e.g.registered relationships where allowable -see below*), may lead to refusal of the application.
Since 2009, there is no difference in migration law in Australia between an opposite sex and same sex partnerships.
*Registration of civil relationships
Most Australian states including Victoria, Tasmania, New South Wales, ACT and now Queensland (Relationships Act 2011 – which amended the Civil Partnerships Act 2011 – since 27 June 2012) have introduced legislation allowing registration of relationship arrangements for de facto couples. This significant shift effectively replaces the long standing ’12 month relationship’ test to meet the relationship criteria for de facto partner applications in those states which recognise registration as a couple (of either sex). This legislation has been recognised under Commonwealth law and is contained in the Migration Regulations and PAM.
There are however, differences between the states’ requirements, so care must be taken when looking at this option.
Continuing need to prove the relationship
Applicants are reminded that registration of their relationship simply waives the previous 12 month relationship test for de fact couples and puts them on the same legal footing as a married couple. It does not waive the requirement to prove that the relationship relied upon is a genuine, mutually exclusive and continuing one. As with all the partner visas, and generally speaking, the longer the relationship can be proved (by a range of evidence) the better. Equally, the shorter a relationship is, the more in-depth evidence will be required to establish a couple’s bona fides. Where applicants cannot register their relationship or where both parties are resident overseas, the 12 month relationship test for a de facto application is still applicable.
Recent Onshore Partner Visa Processing Times and Priorities advice
DIAC has published the following advice about current onshore Partner visa application processing times and priorities:
‘Processing Times and Priorities for the Onshore Partner Program
The onshore Partner visa program is experiencing strong demand, and as a result, the current average processing time for subclass 820 applications is around 13 months from lodgement. This is an average processing time and the actual processing time for each application may vary significantly.
To ensure that your application is processed as quickly as possible only lodge your application when it is complete. Please undertake health and character checks before you lodge your application and supply the department with a completed ‘Form 80′.
Generally, applications are considered in date order but some applications will take longer to finalise than others. Applications which will be prioritised include those which have been remitted following successful review or Ministerial Intervention, and applications which have special circumstances of a compelling or compassionate nature.
Applications which may be decided more quickly include those involving family violence, and those which are ‘assessment ready’ at lodgement. The time to decide assessment ready applications will vary due to a number of factors, including the need for further investigation or external checking, the large proportion of applications which are assessment ready and the need to progress other applications in a fair and timely manner.
Applications which are ‘assessment ready’ are automatically identified as such by the department when we receive them. There is no need to contact us separately about this.
We are unable to provide progress reports for applications lodged less than 13 months ago. If your application was lodged more than 13 months ago, the preferred mechanism for seeking an update on the status of that application is to email the relevant processing team as advised in the letter acknowledging your application. Requests for priority processing on the grounds of special circumstances should also emailed to the relevant processing team.’