Australia is a popular destination for individuals to live, study, or work. Despite the high cost of living and relatively warm weather, this country has many appealing qualities such as the many beaches, the vast open spaces, and – perhaps most importantly – its proximity to Asia-Pacific countries, places we all know we want to visit at some point!
But if you are thinking of visiting Australia and want to stay longer than a tourist, and you have a partner that is either an Australia Citizen, Permanent Resident, or an eligible New Zealand Citizen, there’s one visa pathway that you should consider: the Subclass 309 or 820 Partner Visa.
The application process for a Partner Visa (subclass 820 or subclass 309) can sometimes be difficult and time-consuming. Many things can go wrong if done incorrectly, and it can cost you significant delays in your visa processing.
This blog outlines the top six reasons why your partner visa may be delayed or rejected.
1. FAILING TO LODGE A SPONSORSHIP APPLICATION
The Temporary Partner Visa is a great way to bring your partner or join your sponsor in Australia. However, many applicants are not aware that they need to lodge a sponsorship application after lodging a visa application. Although this might not lead to a visa refusal, this can increase your visa application processing time.
In addition to this, The Department of Home Affairs is introducing a new sponsorship framework, requiring sponsors to be approved before their partners/spouses can apply for a Partner visa. These new changes are set to come into effect in or around November 2021. In this case, a failure to lodge a sponsorship application before your visa application may result in the refusal of your visa application.
2. CONDITION 8503
If you are in Australia and have a visa with a “Condition 8503 – No Further Stay” attached to it, you will not be able to apply for a partner visa onshore unless if it is waived.
If you are subjected to a Condition 8503, we suggest you apply through your immigration lawyer for a No Further Stay condition waiver with the Department of Home Affairs by demonstrating that your current circumstances have dramatically changed from when you were granted your initial visa. Examples of significant changes include:
- Medical reasons
- Death or serious illness of a close family member
- Natural disaster in home country
- War or civil unrest in home country
- Your school cannot provide your approved course.
The Department does not consider the below circumstances as a significant change for a waiver:
- marriage or starting a de facto relationship with an Australian citizen or permanent resident;
- failing your course;
- pregnancy.
At Augustine and Co., we have successfully applied for a waiver of Condition 8503 for many visa holders, who have gone on to apply for a Partner visa, etc. If you have Condition 8503 attached to your visa, get in touch with us to discuss your case so we can advise on the various strategies to tackle your case.
3. ASSUMING YOUR CURRENT VISA WILL CONVERT INTO A BRIDGING VISA IMMEDIATELY
Applying for a partner visa does not automatically cancel your current visa. Your current visa will remain valid until it expires.
Case Example:
You are currently on a Subclass 500 – Student Visa expiring on 01 March 2023. You apply for a Partner Visa on 01 October 2021.
In this case, as you hold a valid visa up until 01 March 2023, you are still bound by Subclass 500 conditions (including the 40 hours a fortnight work restriction). Once the visa expires on 01 March 2023, your Bridging Visa A will kick in (if you partner visa has not yet been granted by then), with full working rights.
If you had mistakenly breached any conditions of your visa, this could lead to non-compliance of your current visa, putting your partner visa application in jeopardy. Therefore, it is essential that you consult an immigration lawyer before lodging your partner visa application.
4. SCHEDULE 3
If you do not have a substantive visa when applying for a Partner visa, this can lead to your partner being subjected to Schedule 3. This means your partner visa will only be successful if compelling and compassionate circumstances apply to your case.
Compelling reasons could include:
1. Applicant and sponsor have an Australian dependent child.
2. Australian partner will suffer if the applicant is not granted the substantive visa
3. Circumstances that are beyond the control of the applicant.
If none of the above applies to you, your partner visa application may not be granted.
5. RELATIONSHIP BREAKDOWN
If your relationship breaks down while applying/holding a Temporary Partner Visa, you may not be eligible for a Permanent Partner Visa unless exceptional circumstances apply.
Relationship breakdown provisions apply if you hold a Prospective Marriage Visa and have applied for a Partner visa (Subclass 820/801) or have applied or hold a Provisional/Temporary Partner Visa (Subclass 820/309) where:
1. Family violence has occurred from your sponsor during your relationship;
2. There are access rights to any dependent children from the relationship are involved;
3. Your Australian sponsor partner has died.
If any of the above applies to you, you should seek immediate legal advice from an immigration lawyer.
6. ASSUMING YOU ARE NOT ELIGIBLE FOR PARTNER VISA IF YOU HAVE NOT LIVED TOGETHER FOR 12 MONTHS.
Many assume that they are not eligible for a Partner visa if they have not married or lived together for 12 months.
The 12 months of de-facto relationship requirement does not apply if you have registered your relationship with an Australian State/Territory Government, such as at the Registry of Births, Deaths, and Marriages Victoria. This ensures that you do not need to wait 12 months to live together to be able to apply for a Partner Visa.
At Augustine and Co., the strategies that we recommend are catered toward your unique circumstances based on Australia’s complex immigration policy and legislative requirements. Therefore, we recommend that you take advantage of our consultation sessions to discuss your visa matter in detail or engage our professional legal services to assist you by preparing a decision ready application and getting the specific legislative and policy criteria right from the very beginning.
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).
