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After attending a business conference in Beijing in January 2017, George Olsen, an Australian citizen, was returning to Sydney on a Qantas flight when he found himself seated next to an attractive female Chinese passenger. George soon struck up a conversation with his fellow passenger and having introduced himself, discovered that the his fellow passenger’s name is May, who has been awarded a scholarship by the Australian Government to study a Doctor of Nutrition Science course at Melbourne University. George tells May they share a common interest as he is a pharmacist and was at the AsiaPacific Pharmacists Congress in Beijing, where he presented a paper on the importance of nutritional aspects in the management of a patient’s medication regime. With this common interest, George and May got along quite well and before disembarking, exchanged contact details. May informs George that the university had arranged accommodation for her at a residential college on campus, while George says that he lives by himself in an inner-city apartment.
After arrival in Melbourne, as it happened to be Chinese New Year, George invited May to go out with him to a Chinese New Year banquet, hosted by his sister-in-law Connie, who is also Chinese. At the banquet, George introduced May as a friend to his other relatives and May was well received by the Olsen family
George and May continued to go out and over time, have fallen in love. Then in January 2018, May finally agreed to move in with George at his South Yarra apartment. Now May’s course is about to finish and she is faced with the prospect of having to go home to China. One evening, George broke down and told May he did not want her to leave, whereupon May said she also felt the same way. George’s sisterin-law Connie, who had herself been sponsored by husband Peter on a Partner visa, suggested they see a migration agent about getting a partner visa for May as well.
You have graduated from the Graduate Diploma course in Migration Law and have just obtained your registration as a migration agent. After returning from a pub lunch, you find George and May in your office reading a copy of the Consumer Guide which your receptionist has given them. You invite them into your office and after ascertaining that they are here to seek advice on how May can stay in Australia on a partner visa, ask to see May’s passport.
You can see from her passport that May’s full name is Chen Yong Mei (she prefers the Anglicised version May, “to make things easier”), born 15 August 1987 in Beijing and holds a student (subclass 500) visa with the conditions 8105, 8202, 8501, 8516, 8517, 8532, and 8533. The visa still has two months validity left. George informs you that he is 2 years older than May and both say they have never been married nor do they have any children from any current or previous relationships. They say whilst they are not aversely attracted to the notion of marriage, they would like to find out whether they qualify as a de facto couple first.
QUESTION Prepare a letter of advice, in plain English, for May regarding the following (You must support your advice with reference to the specific regulatory provisions): 1. What is the definition of ‘spouse’ and ‘de facto relationship’ and do they qualify as a de facto couple. 2. Can May apply for a Partner visa in Australia without having to return to China? 3. If she can apply for a Partner visa, what visa(s) should she apply for and the procedures for making a valid application. 4. What are the criteria required for the grant of the Partner visa? 5. If May’s application for the Partner visa is not finalised by the time her student visa expires (bearing in mind her visa only has two more months to go) and she wishes to travel overseas, can she do this? And how? 6. What is the probability of success of May getting the Partner visa granted? May asked you this question specifically.
3rd October, 2018
XYZ
3 Doris St,
North Sydney, NSW
Australia.
Chen Yong Mei,
South Yarra apartment,
Sydney, NSW
Australia.
Dear Ms. Mei,
Here is a letter of advice for you that illustrate the basic provisos for your eligibility regarding the partner visa as per the Migration Act 1958.
As per section 5F of the Migration Act 1958(herein referred to as Act) states that a person can be a spouse of other person if as per subsection (2), two of them are in married to each other. They can be of same or different sex.
As per Section 5F (2) of the Act refers that the persons are in a married relationship if they are married to each other as per the valid marriage as per the provisions of this act and they mutually commit to a shared life as married couples to the exclusion of others. They must have a continuing and genuine relation. Lastly, they should reside with each other and are not separate or apart permanently.
As per section 5CB of the Migrations Act 1958, A person is in a De-Facto relationship with the other person when they are not married with each other for the purpose of section 5F but they are mutually committed with each other to share a life exclusion of all others and the relations amongst them is continuing and genuine. They must reside with each other, are not apart, and separate permanently. Lastly, family must not relate them.
In the given case, George Olsen and May qualify as a de facto couple as they are not married but they are mutually committed with each other. They have a continuing and genuine relationship as neither of them is married nor do they have children . They are not related by family and have been living with each other since January 2018.
As per Schedule 2 of the Migration Regulations 1994 of the Migration Act 1958, a partner visa is of two types viz. Subclass 820 and Subclass 801. Subclass 820 visa is a partner visa issued on a temporary basis that allows the person to reside in Australia. Subclass 820 visa is the first stage for application of a permanent Partner visa i.e. Subclass801.
In order to be eligible, a person should be married with or in a de facto relationship with either of the following persons
The temporary partner visa (Subclass 820) permits a person to avail the benefits comprising of living and working in Australia unless a pronouncement is made regarding the permanent partner visa i.e. Subclass 801 along with allowing her to study in the country without access to the government funds in this regard. She can also be enrolled in Medicare which is the scheme executed by the Australian government for reimbursing the expenses related to health care. It also includes the dependent children, if any, along with the person. Additionally, a person should be in a de facto relationship for a period of not less than 12 months.
The permanent partner visa (Subclass 801) comprises of all the benefits to be availed by the permanent residents of Australia. They can work and live in Australia for an indefinite time and they can avail the opportunity to study in Australia. They can be enrolled in Medicare, which is a state-run program of health care, by the Australian government. They have the opportunity for applying to the citizenship in Australia. Lastly, they can apply for a permanent residence for sponsored relatives and travel in or out of Australia as per their wish. The person can apply for 801 permanent visas after 24 months of the application of 820 temporary visas.
Therefore, in the given case, May can apply for an 820 temporary visa. without having returned to China, as she is in a de facto relationship for less than 12 months with George. After 24 months, she can apply for 801 permanent visas so that she can permanently reside with George in Australia.
May can apply for Subclass 801 visa and Subclass 820 visa for living and working in Australia. The temporary partner visa (subclass 820) is granted first unless the permanent partner visa (subclass 801) is processed. As per Schedule 1 of the Migrations Regulations 1994, 1214C (3) (a) in the case of Partner Temporary Visa (Class UK), the application must be exceuted at the similar place and time as it is made in respect of a Partner (Residence) (Class BS) visa.
It must be made at the manner and place as stated by the Minister in a legislative instrument, which is made for the item as under sub-regulation 2.70(5). It is essential for the applicant to be in Australia but not in the case of an immigration clearance. As per 1124B Partner Residence (Class BS)(1)(b) the application form is 47SP or 47SP(Internet).
The visa application charges are the base application charge is $7000 along with an additional charge for the applicant who is 18yeras of age is $3505.So obtaining a partner visa is a twin stage process. In order to be qualified for the permanent partner Subclass 801 visa, it is essential for the applicant for obtaining temporary Subclass 820 visa. If an applicant has been granted the temporary visa, she is eligible for being evaluated for permanent partner visa (subclass 801) about two years after the application has been lodged.
If an applicant has been in a long-term relationship before she has applied for the visa, then the permanent subclass 801 visas shall be granted immediately after the temporary subclass 820visa. If a partner is in a de facto relationship, then she must be 18 years or older at the time of applying.
Thus, May can apply for temporary subclass 820visa since she has been living with George in a de facto relationship for less than 12 months i.e. since January 2018. After the completion of 24 months, she would be eligible for applying for permanent partner Subclass 801 visa.
For being qualified for Partner Visa in Australia, a person must be married or should be in a de facto relationship with a citizen of Australia. She must be sponsored by the partner for a period of 2 years. During this period, if the relation continues to be genuine, then the person is eligible for the permanent residence.
The De facto partners must prove that they have been in a de facto relationship for a period of 12 months instantaneously before applying for the visa. They must prove in their application that their relationship is continuing and genuine and reside together and are not separate on a permanent basis.
As per Schedule 2 of the Migration Regulations 1994, the person can apply for temporary and permanent visa simultaneously. If a person applies for a temporary visa to Australia, she must be in Australia at the time when the via is approved. The benefits of obtaining a temporary visa are that a person is able to work in the country as well as she can travel to and from visa, until a pronouncement is made on the permanents visa application.
About permanent partner visa, if a person has lodged the request in Australia, she must be in Australia when the visa is approved. In most of the cases, the permanent residence can be granted without fulfilling the general criteria of 2 years, if a person meets the criteria at the time of applying it. In this context, the two-year waiting period can be waived if at the time of applying a person is in a de facto relationship or is married to her partner for 5 years or more. Lastly, if both the partners are married or in a de facto relationship for 2 years along with having children.
In the given case, May can apply for a temporary visa from Australia and after 2 years, she can apply for a permanent visa.
The above provisions should be in accordance with Section 46 of the Migration Act 1958 of Australia.
A Bridging Visa A (BVA) is granted on a temporary basis. It permits the person to reside in Australia after the cessation of the current substantive visa and while the application of substantive visa is in process. It can also be approved if the request is lodged in Australia for a substantive visa along with holding a substitutive visa. However, a person holding a BVA cannot return to Australia, if once she leaves the country.
A Bridging Visa B (BVB) is also a temporary visa, which permits a person to leave and return to Australia while the application for a substantive visa is in process. The person should return to Australia within a specific travel period. A BVB permits a person to stay in Australia while the visa application is in process. A person can hold a substantive visa and BVB simultaneously.
As per the given case, the application for Partner Visa of May has not been finalized and her student visa is about to expire in two months. In that case, she would be granted Bridging Visa A that would allow her to reside in Australia while her substantive visa application is being processed. She cannot travel outside Australia carrying BVA, as she will not be allowed to enter the country once she leaves it.
Furthermore, she can travel outside Australia if she applies for Bridging Visa B. It can allow a person to leave and return the country while the application for a temporary partner visa (subclass 820) is in process. She would be permitted to return to Australia within a specific travel period. It also allows her to stay in the country while her temporary partner visa application is in process.
As a registered migration agent, it is my primary duty to act in accordance with the Migration Agents Regulations 1998. It is the responsibility of the registered migration agent to act in the legitimate interest of his clients and to deal with them in a legitimate manner.
A migration agent who is registered must respect the dependence of the client on his knowledge and experience. He must take proper steps to preserve and advance the knowledge of the current versions of the Migration Regulations 1994, Migration Act 1958, portfolio policies and other laws pertaining to the migration procedures.
Therefore, in this case, May should be given a clear description of the applicable provisions of the Migration Act 1958 and Migration Regulations 1994. The migration agent should abide by the laws. He should not misguide his clients and should be frank and candid about the possibilities of success while assessing the request of the client for the preparation of the case as per the Migration Act or Regulations.
I hope the advice that is mentioned above would be of great help to you.
Yours Sincerely,
XYZ
(Registered Migration Agent)
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