De Facto Visa For Australia: A Guide For Immigrants And Married And Unmarried Australian Partners
De Facto Visa Tips For Avoiding Visa RefusalDe Facto Visa Consultation With Nilesh Nandan
Looking to avoid a de facto visa refusal?
I’m an Australian immigration lawyer who advises regularly on visa applications for de facto partners. In this post I’ll share with you the top reasons why your Partner visa for Australia sublsclass 820 or 309 application (defacto visa lodged in Australia or lodged outside of Australia) will get refused (arghhhh!) and how you can avoid a refusal decision. You can get one-on-one advice from me once you are ready to lodge.
What is a de facto visa?
Australia offers spouses of Australians the opportunity to get a permanent partner visa. Both spouses can be in a “married relationship” on the one hand or a “de facto relationship” on the other hand.
A “de facto visa” is a “spouse visa” and might also be called a “partner visa”.
Similarly, a “marriage visa” is a “spouse visa” and might also be called a “partner visa”.
A Defacto visa application can be made on the basis of a registered relationship. You’ll get certificate issued to you in a month. You could also get a defacto visa the basis of a 12 month de facto relationship (without a certificate).
If you are applying on the basis of the relationship certificate, you don’t need to meet the 12 month rule.
Evidence for a de facto visa?
Most people think that not having enough of a pile of documents showing joint names and “couple” photos with friends and family for a 12 month period is why they’ll get refused, right?
Wrong. It’s not the quantity of material. Rather, it’s the compelling and corroborative value of the documents provided.
The de facto visa seeking couples I’ve helped in the last 20 years haven’t rushed out on the very first day of their new relationship to set up a new bank account. They haven’t rushed to execute a will (deed) naming each other as a beneficiary.
Realistically, you’d only rush to do these sort of things if your most important goal was getting a visa. Chances are that in such a case your de facto visa application isn’t that legitimate, hey?
Is your de facto visa application primarily facilitating your immigration goal? If your documents suggest this, then you are on the wrong track! Get on a different track fast.
Do you have to be divorced to be in a defacto relationship?
You can most certainly be in a de facto relationship but still be married to somebody. In order to get married again, you must first get divorced. If you are married and separated, you could be in a defacto relationship with a new partner and this could mean you may qualify for lodging a partner visa, without your divorce being finalised.
How many times can I sponsor?
As a general rule you can only sponsor a partner for a permanent partner visa on two occasions in your lifetime and these must be five years apart. There are however opportunities to sponsor more than two partners and to do so with a five year period.
De facto visa refusal
If your relationship is genuine, you are far more likely to get refused because of a visa law technicality rather than for a substantive reason…Like not holding the right visa at the time of application or being in the wrong location when you apply etc. Most partner visa applicants don’t get their de facto partner visa refused for not having enough supporting material.
It’s very possible to get a de facto partner visa grant if your relationship is genuine and you explain why you are light-on with supporting material. Most of my clients have scant documentation, yet all of them are in genuine de facto relationships.
I’ve had de facto partner visa applications with only scant supporting material, approved, time and time again.
The real issue in de facto partner visa cases, is credibility.
Has your case officer been provided with credible information that your relationship did in fact exist, to the required level, at the time prescribed by the Regulations, and that your relationship continues to exist now, at the time of decision? These are the two most important questions.
I’ve found that immigration case officers want nothing more than to approve an application, whether de facto partner visa application or anything else for that matter. Why?
Firstly, it’s a lot easier to approve a de facto visa application, then to refuse one. Writing out “reasons for decision” in a decision record if a de facto visa is refused can be very time consuming, especially when compared to how simple it is to grant a de facto visa. Department officers also recognise that an appeal to the AAT (Tribunal) might be lodged by any refused partner visa applicant and their sponsor.
Immigration officers will try to approve legitimate cases quickly.
If you provide plausible evidence supporting your legitimate case, this will save you (and your partner) the anguish of appealing against any adverse decision not to grant your visa.
I’ve also found that Immigration case officers are reasonable in their expectations of applicants when it comes to providing documentation. And if you make the right approach from the start, they will work with you to get your de facto partner visa application approved with the least amount of stress. I can help you decide what is relevant and what is not relevant to provide with your partner visa application, and how to deal with obvious shortcomings in your support material.
Give case officers complete material and explain why some supporting material is scant
Case officers expect you to furnish the details of the following four aspects of your relationship:
- Nature of the household
- Mutual commitment
Both the visa applicant and sponsor should each make clear, separate personal statements about their relationship? Do you need help with your statements?
This is your opportunity to set out the main story of the relationship – how you met, all the important dates along the way and the development of the relationship. The right format for doing this is via a Commonwealth statutory declaration (there is a prescribed statutory declaration form 888 for this). The statutory declaration form rather than the form 888 is useful when you need to cover one specific issue and make things crystal clear for a decision maker about that specific issue.
If material is obviously missing, explain why and be truthful and frank with case officers. If you are nervous about this for any reason, make an appointment with me to help you draft the appropriate statement.
Immigration officers tend to be smart, experienced and methodical. They’ll smell a rat a mile away, and you can count on them checking things thoroughly if things don’t quite stack up for them.
Don’t try to fudge things or skim over gaps! You’ll waste a lot of time and money.
De facto visa application fees now cost around $8000 in filing fees alone.
Immigration lawyer fees are similar. You will suffer stress, delay and immigration consequences if your visa is refused. So address any gaps in your application head on. There are legitimate reasons why certain material could be scant or missing altogether. My advice is to explain carefully why stuff is missing.
If there’s any adverse information, be the first to raise it.
The credibility you will have as a result of bringing something to an Immigration case officer’s attention (rather than the other way around) may well be the credibility that ultimately saves your bacon, if you have a border-line application.
If the visa forms, personal documents and supporting explanation you and your immigration lawyer provide is credible, your application for a de facto partner visa will most likely be granted, even though there might be relatively little by way of evidence, compared to what might be provided by others.
Is de facto visa approval guaranteed?
Absolutely not! But your chances of approval are greatly improved by following the approach above.
The credibility theme is one aspect of a partner visa preparation and submission system that I’ve successfully used for over 20 years.
I’ve lodged well over a thousand successful de facto partner visa applications with the Australian Department of Immigration. Do you need help lodging yours?
Onshore subclass 820 application
A person might be eligible to apply for an on-shore (subclass 820) or off-shore (subclass 309) partner visa if they are in a de facto relationship. The onshore partner visa applied for under Subclasses 820 and 801 allows the applicant to live in Australia on the basis of a genuine spousal relationship.
The provisional partner visa (subclass 820) provides for a bridging visa which allows the visa holder to stay in Australia until a decision is made regarding the permanent partner visa (subclass 801).
The bridging visa in granted in association with an onshore partner visa lodgement, typically includes unlimited work rights and the ability to study in Australia.
There is a waiting period of approximately 2 years from the date of application of this visa before a decision is made to grant the provisional visa.
The permanent partner visa (subclass 801) application is made at the same time as the subclass 820 visa but the subclass 801 is only assessed 2 years after the date of application lodgement. So you’ll need to show a case officer that since the time of lodgement up to the time of getting a positive decision in relation to your permanent residence subclass 801 visa you were in a genuine and continuing relationship with your partner.
So you’ll need to show case officers that since the time of lodgement you are still together.
Eligibility requirements for de facto visa are as follows:
- You and your partner must have been in a de facto relationship for at least 12 consecutive months immediately before making the application or have registered your de facto relationship before making the application.
- If no certificate, you must have been living together for at least 12 months immediately before the application, or, if living apart, only temporarily apart.
- You must be sponsored by an Australian citizen or permanent resident, or an eligible New Zealand citizen. Usually this person will be over the age of 18.
- You and your partner must be able to demonstrate a commitment to a shared life as partners in a genuine relationship.
It is important to note that the 12 month requirement can only be waived very limited circumstances or if the de facto relationship is registered in Australia. Get advice from me about the 12 month rule and whether or not you meet the requirement.
De facto visa application work rights
The bridging visa granted in association with an on-shore partner visa lodgement, typically includes unlimited work rights and the ability to study in Australia. Contact us to discuss bridging visa options and changes to bridging visa conditions.
Criminal record and de facto visa applications
Offshore de facto visa applications
Offshore partner visa applications can be made under subclass 309 partner visa and subclass 100 partner visa using the same eligibility criteria as under the onshore partner visa.
The provisional partner visa (subclass 309) allows the visa holder entry into Australia and subsequently allows him/her to stay until a decision is made on their permanent partner visa (subclass 100).
New Zealanders in Australia – The Subclass 461 Option
If you a Kiwi living in Australia on a sublclass 444 visa then you may be able to sponsor your defacto partner for a visa to live and work in Australia. Useful option if your partner is not a Kiwi and you are. or the other way around.
What’s been your experience with getting visa advice for defacto visas for Australia?
Please share your comments with me. I love to know more about your experiece with applying for this visa subclass!