Are you in a committed de-facto relationship with an Australian partner and want to stay in Australia permanently?
Then, this article is for you!
The ‘De Facto Visa‘ (Subclass 309/100 and 820/801) allows the de-facto partner of an Australian citizen, Permanent Resident or Eligible New Zealand Citizen to study, work and live indefinitely in Australia. The application process and criteria for obtaining a de facto visa are similar to the Australian Spouse Visa, with the exception that couples do not have to be married at the time of application.
This article briefly explains the benefits of applying for a de facto visa.
12-MONTH REQUIREMENT WAIVERS
Section 5CB of the Migration Act 1958 identifies both applicant and their sponsor to be in a de-facto relationship if they:
· are not married to each other
· have a mutual commitment with their de facto partner to the exclusion of all others
· their relationship is genuine and continuing
· they live together or do not live permanently apart
· are not related by family.
In addition to the above, reg 2.03A of the Migration Regulations 1994 requires the couple to be in a de facto relationship for at least 12 months immediately before applying for the visa. However, this 12-month criterion can be waived in certain circumstances where:
1. The couple registers their de-facto relationship with the Australian Registry of Births, Deaths and Marriages; or
2. Compelling and compassionate circumstances exist for the visa grant.
There may also be additional waivers available (e.g., if the applicant is an applicant/holder of a humanitarian visa, due to a religious exemption, etc.)
Relationship Certificate
If the couple registers their de-facto relationship with the relevant Australian authority, they can apply for a de-facto visa with less than 12 months of living together. Registration provides legal recognition as a couple under state law (and for immigration purposes) and formalises the couple’s de facto status without getting married.
Relationship certificates can significantly benefit visitors or temporary residents in Australia – applicants can apply for a de facto visa (Subclass 820) before their current substantive visa expires (without having to live together for 12 months).
Compelling/Compassionate Circumstances
If the applicants are unable to obtain a relationship certificate, they may be able to apply for a de-facto visa if:
· there are compelling/compassionate circumstances that exist in the applicant/sponsor’s visa application, and the
· compelling and compassionate circumstances are extenuating enough to warrant the visa grant.
Compelling and compassionate is a high threshold, and these may include (but are not limited to) circumstances where:
· The applicant has dependent children – If there are children in the relationship, the couple may apply for/be granted the visa.
· Couples who were unable to cohabit – If the couple cannot cohabit due to their customs/traditions or laws in the applicant’s country of residence, they can apply for the de-facto visa under compelling/compassionate circumstances.
· Couple in a same-sex relationship – Applicants in a same-sex de-facto relationship can apply for a de-facto visa under compelling/compassionate circumstances if their relationship is considered illegal/dangerous in their home country.
INCLUDING DEPENDENT CHILDREN
Applicants for the de-facto visa can include dependent children in the application either:
· when they lodge their visa application, or
· After they lodge their application, but before the Department decides on the application.
If the applicant has already been granted a temporary de-facto visa (Subclass 309/820), they can still include dependent children through a Subclass 445 visa.
Subclass 445 allows dependent children of the visa applicant for a de-facto visa to move to or stay in Australia until the Department decides on their parent’s permanent partner visa application.
ALLOWS FOR A BRIDGING VISA GRANT
If the visa applicant is:
· onshore; and
· does not have a condition 8503: ‘No further stay’ condition on their current visa, a valid de-facto visa application will allow applicants to remain in Australia while awaiting a decision on their application.This means that once the visa applicant’s existing substantive visa expires, they will automatically* roll into a Bridging Visa A (‘BVA‘), which allows them to remain in Australia until a decision is made on their Subclass 820 application. The de-facto bridging visa prevents partners from living in separate countries while the Department processes their visas.
FULL WORKING RIGHTS AND ACCESS TO MEDICARE
Applicants who apply for a Subclass 820/801 visa will be granted a bridging visa with nil visa conditions on the BVA and can work full-time. *
In addition to the above, visa applicants can access Medicare from when the Subclass 820 visa is lodged.
Bridging visas are not granted on the Subclass 309 visa, so applicants for the offshore partner visa are not privy to travel/work rights.
CONCLUSION
Augustine and Co. is an Immigration law firm based in Melbourne, specialising in Australian immigration & citizenship law. Our Migration lawyers and experienced consultants are always available to provide sound and ethical immigration solutions to turn your Australian dreams into a reality!
Should you have any queries or want to discuss the best way to secure a Subclass 300 Prospective Partner Visa, Onshore partner visa, Subclass 820 partner visa, Temporary partner visas, Offshore partner visa, Subclass 309 partner visa, please feel free to schedule a consultation with us.
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*Please note that this may differ based on individual circumstances. We recommend that you book a consultation with us for further clarification.
Author
Calvin Augustine is the founding solicitor of Augustine & Co. Immigration Lawyers. He graduated with Honors from the University of London law school, before being admitted to practice in Malaysia and Australia (admitted in SA, appears in all Victorian Courts and Tribunals, at trial and appellate levels).
