Criteria for a Spouse or De facto relationship
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 Asia-Pacific 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 sister -in-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)
- 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.
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):
- What is the definition of ‘spouse’ and ‘de facto relationship’ and do they qualify as a de facto couple.
- Can May apply for a Partner visa in Australia without having to return to China?
- If she can apply for a Partner visa, what visa(s) should she apply for and the procedures for making a valid application.
- What are the criteria required for the grant of the Partner visa?
- 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?
- What is the probability of success of May getting the Partner visa granted? May asked you this question specifically.
A spouse is a lawfully life partner in a marriage. When the legislation definition is missing, the law presumes a spouse as a lawfully married spouse. Based on the Marriage Act 1958, a person can be called a spouse of another when the two are in a legally valid marriage. Additionally, an individual can also be a spouse of the other when he or she is married overseas and the marriage is recognized by the Australian government. The two must have a mutual commitment to share their lives as spouses to the segregation of other people. They must be treating one another in a genuine and enduring manner. They must also be living together and at a distance on an everlasting basis.
On the other hand, a de facto relationship is whereby two people who were formerly in a relationship, are of the opposite or same sex, and had a relation as couple staying together on a genuine domestic basis. This definition is evident in the case Moby & Schulter (2010) in which the Family Court used s. 4AA(2) of the Family Law Act 1975 to identify a de facto relationship. According s.5CB of the Migration Act 1958, any relationship where two people are legally married or are in family relation cannot be referred as a de facto relationship. The association must have a mutual vow to share life to the segregation of other people. The relation should be genuine and ongoing; they should be living together and at a distance permanently. Based on these requirements, it is clear that George and May qualifies as a de facto couple.
May can apply for a Partner Visa in Australia without returning to China. It is because the application of s.48 that used to invalid onshore application has now been corrected by the insertion of Partner visa Registration 2.12, making Partner visa exempted from Section 48 restrictions. However, for her to lodge for a partner visa application, she must have a substantive visa for such purposes and length of stay. For her to apply for Partner Visa, she must be in a relationship with a Permanent Resident, a citizen of Australia, or a qualified citizen of New Zealand. She must also be either married, stayed together in a de facto correlation for twelve months, or have been cohabitating in a genuine relationship and their relationship is registered with the Australian Government.
Moreover, she will be required to genuinely provide evidence of commitment and continuing relationship besides the relationship registered certificate. Therefore, with the visa that she has, she may be able to apply for partner visa Subclass 820, since her substantive visa does not have any of the No Further Stay numbers such as 8503, 8534, 8535 and 8540 conditions on it. Therefore, for her to be able to apply for Partner Visa, she must apply for temporary visa concurrently with the permanent visa using a single fee. After obtaining her temporary partner visa, she will be able to obtain a permanent partner visa in the next two years’ time being that the two visas are applied at the same time with a single fee.
Applying for Partner Visa
She can apply for temporary partner visa, which is one of the stage processes for attaining the permanent partner visa. When you are granted a temporary visa, you become eligible to be evaluated for the permanent Partner visa for at least two years after the application of the permanent visa has been lodged. Temporary partner visa is a subclass 802 visa that allows one to stay in Australia while waiting for a decision on his or her permanent Partner visa to be prepared. Other benefits of the temporary Partner visa include:
- living and working in Australia
- studying even without government support
- travelling outside Australia as one wishes,
- accessing free English tuition of up to 510 hours by the Adult Migrant English Program and,
- enrolling in Medicare under the national health scheme in Australia
Moreover, because May has been in a long relationship with George before lodging any application, she might be granted the permanent subclass 801 visa immediately after receiving the temporary subclass 820 visa. The procedure for applying for a temporary partner visa includes completing the Form 80, medical assessment, police checks, and payment for the visa. Form 80 is a character assessment document which does not appear in the application form of the partner visa, but is needed at the final process. One needs to be in Australia during the application of the visa and when the visa is being granted. The partner visa subclass 802 enables one to enter, stay, work, and access Medicare until when the subclass 801 visa will be granted. Other than that, a subclass 801 allows one to stay permanently, work, study, get payment of some social security, and to be able to apply for Australian citizenship. It also enables one to sponsor an eligible relative for permanent residence and to travel into and out of Australia for five years. However, the visa applicant must meet health, age, and care characteristic requirements.
The criteria required for the grant of the Partner visa, first she needs to get a Bridging visa associated with George’s visa when she will be waiting for the processing of the Partner visa that might be subclass 100 or 801. To start the process of lodging one need to:
- have an ImmiAccount
- Complete the Form 47SP Application that allows one to migrate to Australia by a partner.
- The sponsor will have to use TRN to submit his or her 40SP Sponsorship Form for a Partner to be allowed to move to Australia.
- Fill the form
- Pay for the partner visa Application charges
- Review and acknowledge the application by pressing Submit
- Attach all the required documents
If the above criteria result is successful, May will be granted a Temporary Partner visa such as a Subclass 820 for a person who is within Australia or a Subclass 309 for any person applying from overseas. She will be in her Temporary visa until that day she will be grated a Permanent Partner visa, which may be subclass 100 or 801. Moreover, with the temporary partner visa, she will be able to apply for a Permanent Partner visa in two years’ time. However, for this to happen, May must first have to be in a de facto relationship with George.
Temporary Partner Visa
On the other hand, relationship requirements include genuineness of the relationship. The applicants are needed to give evidence that they are in long-term relation with the sponsor. It is done by having a document that shows that they have been sharing life and are committed to each other based on the following assessment:
- shared household such as lease agreements
- relationship financial aspect, for example, money transfer, joint purchases, and bank accounts
- social aspects for example, the statements from family, friends, travel records, and photos
- how serious the commitment is for example, the history of the relationship and their future plans
If May’s application for the Partner visa is not finalized by the time her study visa expires, she is allowed to apply for a Bridging visa A (BVA). Abridging visa allows an individual to stay in Australia while the temporary partner visa is being processed. It is given automatically to a person who has applied for a partner visa. However, BVA does not allow one to travel in and outside Australia. With BVA, one can work, study with no State support, enroll in Medicare. The reason why she must apply for Bridging visa is because she cannot stay in Australia without a visa. Staying in Australia without a visa is unlawful for non-citizen.
If she is still holding her current student temporary visa when her BVA is granted, she must still comply with the conditions that are in her substantive visa. On the other hand, when her substantive expires, she will have to follow the conditions set in her new BVA. If BVA she has applied for does not let her work in Australia nor has conditions on the work, the law still allows her to apply for another BVA that can let her work. However, for one to be considered for a BVA that lets her work, she will have to show that she has a financial problem. Consequently, a BVA only lets one to temporarily stay in Australia and usually ends when one leaves Australia. However, if May wishes to travel overseas, she can do so by applying for a Bridging visa B (BVB) before she travels. A BVB visa enables her to travel overseas and get back to Australia when her application for a new functional visa is still under processing. For her to get BVB, she must be a holder of a BVA or BVB, and have had applied for a new substantive visa. The cost of BVB is from AUD 145 and the length stay also varies.
On the other hand, if she does not have a substantive visa that can enable her to travel or if her substantive visa might expire before she returns to Australia, she can travel on her current substantive visa. Although, if her substantive visa might ends while she is in China or in another country besides Australia and does not have a BVB, she will have to apply for and be given a substantive visa before she can get back to Australia. However, there is no guarantee in getting one while one is outside Australia.
The probability of May getting a partner visa is high; however, it can only happen after getting into a de facto relationship with George. It because the law only allow those who are married, Australian citizen, in a de facto relationship, qualified citizen of New Zealand or a Permanent resident of Australia during the application time to obtain Partner visa. After being in a de facto relationship, she can lodge a Partner visa while in Australia and get a Bridging visa related to it. However, there could be some limitations concerning work or study. The limitation will depend on her current temporary study visa; that is, if her current visa has the rights to study or work. But being that she holds a study visa, it would not be a milestone for her. Being that her study visa is expiring in the next two months, acquiring a Bridging visa related to George’s visa will still allow her to still have all the rights she had under the study visa. Moreover, during the period she will be waiting for her Permanent partner visa, she will not be able to get fee assistance such as Newstart or Higher Education Contribution Scheme (HECS) or other government funding.
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