De facto Visa Tips – A Guide To Help Avoid A De facto Visa Refusal
De facto Visa Tips for Refusal
Looking to avoid a De facto Visa refusal?
I’m an Australian immigration lawyer who advises regularly on visas applications for de facto partners. Here, I share with you the top reasons why your Australian Partner visa (including your de facto visa) application will get refused (arghhhh!) and how you can avoid refusal.
What is a De facto visa?
Australia offers spouses of Australians the opportunity to get a partner visa, with both spouses either being in a “married relationship” on the one hand or a “de facto relationship” on the other hand.
So a defacto 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.
De facto visas can be made on the basis of a relationship certificate or on the basis of a 12 month de facto relationship (without a certificate).
If applying on the basis of the relationship certificate, you don’t need to meet the 12 month rule.
Evidenced 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.
De facto Visa Refusal
If your relationship is genuine, you are far more likely to get refused on 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 client have scant documentation, yet all of them are in genuine de facto relationships.
I’ve had de facto partner visas 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? Those is the ultimate question.
I’ve found that immigration case officers want nothing more than to approve any 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 the de facto visa is refused is 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 have the right approach with them from the start, they will work with you to get your de facto partner visa application approved with the least amount of stress.
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
- Your commitment
Both the visa applicant and sponsor should each make clear, separate personal statements about their relationship.
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 to do this is via a Commonwealth statutory declaration (there is a prescribed statutory declaration form for this).
If a material is obviously missing, explain why and be truthful and frank with case officers.
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 really anally-retentive applicants.
Is De facto Visa Approval Guaranteed?
Absolutely not! But your chances of approval are greatly improved by following the approach above.
The credibility them is one aspect of a partner visa preparation and submission system that I’ve successfully used for 20 years.
I’ve lodged well over a thousand successful de facto partner visa applications with the Australian Department of Immigration.
De facto Visa 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 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. However, there is no access to Medicare and government funding for tertiary education. In addition, there is a waiting period of approximately 2 years from the date of application on this visa before a decision is made on the provisional application.
The permanent partner visa (subclass 801) application use made simultaneously as the 820 but is assessed after 2 years the application lodgement. So you’ll need to show case officer that since the time of lodgement you are in a continuing relationship with your partner.
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. However, there is no access to Medicare and government funding for tertiary education. In addition, there is a processing delay period of approximately 15 months from the date of application of this visa, before a decision is made on the provisional application.
The permanent partner visa (subclass 801) application is made simultaneously with the 820 provisional visa application, but the 801 is assessed after 2 years of the application lodgement.
So you’ll need to show case officers that since the timer lodgement you are still in a continuing relationship with your partner.
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 defacto relationship before making the application.
- If no certificate, you must have been living together for at least 12 months immediately before the application, of 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 of or 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 and rare circumstances or if the de facto relationship is registered in Australia.
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).
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