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One year relationship requirement - Australian spouse visa - de facto partner


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#1 Bridge

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Posted 07 May 2012 - 09:53 PM

One year relationship requirement - Australian spouse visa - de facto partner

People wanting to migrate permanently to Australia as the de facto partner of their Australian sponsor are required by the Migration Regulations to be in a relationship with that sponsor for at least one year before they can make a valid visa application. This is commonly referred to as the '12 month rule'.

The one-year relationship requirement applies whether the spouse visa application is made onshore or offshore.

Applicants seeking to demonstrate a de facto relationship with their partner must provide evidence for the period covering at least twelve months immediately prior the visa application being lodged. That evidence should cover the following:
  • the applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others
  • the relationship between them is genuine and continuing
  • they live together, or do not live separately and apart, on a permanent basis.

Living together is regarded as a common element in most on-going relationships. Applicants and sponsors who are not currently living together may be asked to demonstrate a high level of proof that they are not living separately and apart on a permanent basis.

Evidence that is considered in determining whether the applicant and sponsor are in a de facto relationship

Some of the factors that will be taken into consideration in determining whether the applicant and sponsor are in a de factor relationship include:
  • knowledge of each other's personal circumstances
  • financial aspects of the relationship, joint financial commitments such as real estate or other assets and sharing day-to-day household expenses
  • the nature of the household, including living arrangements and joint care and responsibility for any children of the relationship
  • the social aspects of the relationship, provided in statements (statutory declarations) by friends and acquaintances
  • the nature of the commitment, including duration of the relationship, how long the couple has been living together and whether they see the relationship as a long-term one.


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#2 Kanga

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Posted 07 May 2012 - 10:05 PM

Very informative post Bridge.

I would just like to add the following.

The one-year relationship requirement does not apply if the applicant can establish that there are both compelling and compassionate circumstances for the grant of the visa.

It is possible to obtain a waiver of the one-year relationship requirement if compelling and compassionate circumstances can be established.

A couple of examples of this might might be:
  • the applicant and sponsor have a child together.
  • at the time of the visa application, the de facto relationship was registered as a prescribed relationship in the relevant Australian state or territory.
  • in the case of a same-sex de facto relationship, where cohabitation was contrary to law in the applicant's country of residence.


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#3 canguro

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Posted 12 September 2012 - 07:28 PM

Hello Bridge, Kanga,

I noted that you said that 'compassionate grounds' are considered when granting the Defacto Visa, but I am wondering to what extent. With my situation, I live in NSW but my girl lives on the other side of the world. We've been together physically for 5 1/2 months, but just this week was the 18 month mark for how long we've actually been 'together'. We certainly don't pass the 'living together for 1 year' test, but I hope there would be some compassion felt for our situation. She wants to come and live with me and we would like to start a life here together. We are wholly committed and have not had one day in the past 18 months where we didn't talk to each other.

What would the chances of qualifying for compassionate grounds be in a situation such as this?

Thank you
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#4 Bridge

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Posted 12 September 2012 - 10:09 PM

Hello Bridge, Kanga,

I noted that you said that 'compassionate grounds' are considered when granting the Defacto Visa, but I am wondering to what extent. With my situation, I live in NSW but my girl lives on the other side of the world. We've been together physically for 5 1/2 months, but just this week was the 18 month mark for how long we've actually been 'together'. We certainly don't pass the 'living together for 1 year' test, but I hope there would be some compassion felt for our situation. She wants to come and live with me and we would like to start a life here together. We are wholly committed and have not had one day in the past 18 months where we didn't talk to each other.

What would the chances of qualifying for compassionate grounds be in a situation such as this?

Thank you


Canguro welcome to the forum.

Generally unless an applicant can establish compelling and compassionate circumstances for the grant of the visa (normally requiring a child of the relationship) the applicant and sponsor must have been in a de facto relationship and living together (or not living apart on a permanent basis) for at least 12 months immediately before the date of applying for the visa. Unless there is a child to the relationship it is very difficult indeed to establish compelling and compassionate circumstances.

Canguro from what you have posted, I certainly don't doubt that your relationship with your girlfriend is genuine, but do you satisfy the 12 month requirement of living together? No you dont. Secondly, do the circumstances as you have describe amount to compelling and compassionate circumstances, I dont think so either. If I was in your situation I would be very reluctant to submit a partner visa base on de facto relationship at this stage.

However, have you considered a prospective marriage visa? This would certainly be an option for you both.

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#5 Kanga

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Posted 12 September 2012 - 10:13 PM

Welcome Canguro,

I agree with everything Bridge has said. Especially the part about considering a Prospective Marriage Visa.

All the best. There is light at the end of the tunnel, don't give up mate.

Kanga

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#6 canguro

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Posted 25 September 2012 - 08:20 PM

Hello again,

Thank you very much for the prompt reply - and sorry mine hasn't been as much. I am happy to say however that I have now finished my last exam at University.

I do agree that I have a shaky case for applying on compassionate grounds, and the prospective marriage visa (although a bit scary for both of us) might be an option, if we really decide to go through with it. I will have to read more about it, and talk with her, thank you.

I like to think there is a light at the end of the tunnel. Australia sure does make it tough for immigrants though.

We have been talking about the business and sponsorship Visas as well, and researched into them quite a bit. We have established that her field of work is on the SOL schedule, however she may not pass the requirements of VETASSESS. She has finished a degree in her field and worked a one year internship, and will now work on a 6 month contract with another Multinational Company. We don't think that it is enough though to be 'in demand' and the costs of this path are amongst the highest.

Also, we have been wondering if the 'Sponsorship' visa is as difficult as we imagine. I have in my mind that the only reason a company would sponsor someone from overseas to work in Australia is if they are filling a niche, or an extremely valuable/highly skilled individual. Would you say this is the case? Or do some companies like to hire internationals in an attempt to be a good global citizen? (going out ona limb here!)

I am hoping we have another avenue of opportunity without having to commit to marriage. I thought of a scenario where she would come on a study visa to do an english course (costly, I know) but that we would live together for that time period (preferably one year) and then satisfy the de-facto 12 month living requirement, but it is a big chunk out of her life that wouldn't exactly feel right to me, knowing that she would only be allowed to work part-time and couldn't advance her career until she was a permanent resident.

I appreciate your feedback and advice so much, it's a great feeling knowing that there are people out there willing to listen and talk about these issues with the people that have them.

Thank you very much


#7 Kanga

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Posted 26 September 2012 - 01:56 PM

Canguro,

I will be honest I dont know particuarly much about student visas and skilled migration.

However I would say the following is pretty much on the money:
  • For a student visa your Thai girlfriend would have to find and be accepted into an eligible course. The costs involved are huge due to foreign students having to pay full fees. Foreign students are not eligible for Fee Help. I am just guessing here, but I wouldn't be surprised if a one year course would be upwards of $15K. The following link to the Australian Government Study in Australia website has plenty of useful info.
  • Skilled migrant visas, whether independent or sponsored, are points-based visas. That is, the applicant must obtain a minimum number of points to qualify for the visa. Different points are awarded for things such as, education, age, English literacy, qualifications and work experience. Another link you might find of interest is the Professional and other skilled migrants section on the DIAC website.


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#8 canguro

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Posted 01 October 2012 - 01:01 AM

Kanga,

Thanks very much for the help! You are right about the foreign students paying through their nose.. I don't think it's a method that we could justify when there are still alternatives. The skilled migration seems to have changed to an invite only approach since July this year, which makes things a bit tougher I think. Her field of work (Market Research) is probably not in demand as much as Engineering or I.T would be so the waiting time and uncertainty of acceptance might cause us to lose hope...

We hypothesised a plan tonight, I would love to hear your opinions about it. Suppose that she gets a visitors visa for 3 months. After around the 2 month mark, we lodge our application for the defacto visa, and at the same time, apply for a bridging visa that will allow her to remain here lawfully until the defacto visa is granted. If that Visa is denied, then we could try the Marriage visa (it's not our first option because we want to ensure that everything is right.. and that if/when we did get married it would be on our own time).

We've been talking about it a lot, it's nearly time to make the decision. I really think that she should have a chance to live here, and that we should be able to pursue a life together as we have been wishing. She speaks 4 languages, has completed two degrees and would be a valuable asset to the Australian workforce... I should write to the minister himself!! (just kidding!)

Thank you very much

Canguro


#9 Bridge

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Posted 01 October 2012 - 12:57 PM

Kanga,

Thanks very much for the help! You are right about the foreign students paying through their nose.. I don't think it's a method that we could justify when there are still alternatives. The skilled migration seems to have changed to an invite only approach since July this year, which makes things a bit tougher I think. Her field of work (Market Research) is probably not in demand as much as Engineering or I.T would be so the waiting time and uncertainty of acceptance might cause us to lose hope...

We hypothesised a plan tonight, I would love to hear your opinions about it. Suppose that she gets a visitors visa for 3 months. After around the 2 month mark, we lodge our application for the defacto visa, and at the same time, apply for a bridging visa that will allow her to remain here lawfully until the defacto visa is granted. If that Visa is denied, then we could try the Marriage visa (it's not our first option because we want to ensure that everything is right.. and that if/when we did get married it would be on our own time).

We've been talking about it a lot, it's nearly time to make the decision. I really think that she should have a chance to live here, and that we should be able to pursue a life together as we have been wishing. She speaks 4 languages, has completed two degrees and would be a valuable asset to the Australian workforce... I should write to the minister himself!! (just kidding!)

Thank you very much

Canguro


Hi Canguro,

What passport does your girlfriend hold?

Is she eligible to apply for an ETA visa where the Condition 8503 'no further stay condition' cannot be imposed?

Does the passport she holds require her to apply for a subclass 676 visitors visa where the imposition of Condition 8503 is discretionary, but may be imposed.

Depending upon what visa your girlfriend is able to get to visit Australia, and whether it has Condition 8503 attached will determine whether she can make an onshore partner visa application (subclass 820).

The Bridging Visa 'A" is applied for at the same time as the onshore partner visa. It is important to note however that to apply for both the onshore partner and the bridging visa A, the applicant must have while in Australia applied for a visa that can be granted in Australia (onshore partner) and held a substantive visa when they applied for the new substantive visa. The key here is the visa your girlfriend holds when she applies for the onshore partner visa. If she has a visa with the no further stay condition she will be prevented from applying for the onshore partner visa and the Bridging Visa A.

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#10 canguro

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Posted 07 October 2012 - 10:14 PM

That has really given us a lot to think about Bridge, and we have discussed about this for a week now. Right now, it seems that the Tourist visa subclass 676 must be the only practical way for her to come here. I think we have to pray that the condition 8503 does not get imposed. I am under the impression that there is only a small chance that it will be.

She is a very smart and educated girl from Barcelona and has worked in two multinational companies, and she has been here before for university exchange and has many friends here as well. Is my understanding correct in that the commissioner will only impose a condition 8503 depending on where the person is from and for which reasons they are to come? Because if she comes for reasons being "to catch up with old friends and visit more of Australia", the condition, in my opinion, shouldn't be imposed. Her last visit was on the Student Visa, and the condition as not imposed.

Assuming that she gets the 676 Tourist visa without condition 8503 imposed, is it true that she can apply to extend that visa for 3 months at a time for a maximum of 12 months? I am just wondering because after the 6th month, we would have been together for an over period of over 12 months, enough to satisfy the de-facto visa requirements and enable her to apply for the onshore de-facto visa (I hope!!)

Just to clarify from the last post, with the application of the de-facto visa, does that mean we automatically apply for a bridging visa as well? And what time-frame are we looking at for that bridging visa to be granted? and sorry for all the questions.. but how long would it take for the de-facto visa to be granted (I read it was 13 months) and would she be able to work whilst on the bridging visa? We have discussed that the main problem with her coming and dealing with these visa problems is that she might not be able to work, and would probably end up going mad staying at home alone whilst I work.


#11 canguro

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Posted 07 October 2012 - 10:16 PM

Bridge,

Thanks very much, that has really given us a lot to think about and we have discussed about this for a week now. Right now, it seems that the Tourist visa subclass 676 must be the only practical way for her to come here. I think we have to pray that the condition 8503 does not get imposed. I am under the impression that there is only a small chance that it will be.

She is a very smart and educated girl from Barcelona and has worked in two multinational companies, and she has been here before for university exchange and has many friends here as well. Is my understanding correct in that the commissioner will only impose a condition 8503 depending on where the person is from and for which reasons they are to come? Because if she comes for reasons being "to catch up with old friends and visit more of Australia", the condition, in my opinion, shouldn't be imposed. Her last visit was on the Student Visa, and the condition as not imposed.

Assuming that she gets the 676 Tourist visa without condition 8503 imposed, is it true that she can apply to extend that visa for 3 months at a time for a maximum of 12 months? I am just wondering because after the 6th month, we would have been together for an over period of over 12 months, enough to satisfy the de-facto visa requirements and enable her to apply for the onshore de-facto visa (I hope!!)

Just to clarify from the last post, with the application of the de-facto visa, does that mean we automatically apply for a bridging visa as well? And what time-frame are we looking at for that bridging visa to be granted? and sorry for all the questions.. but how long would it take for the de-facto visa to be granted (I read it was 13 months) and would she be able to work whilst on the bridging visa? We have discussed that the main problem with her coming and dealing with these visa problems is that she might not be able to work, and would probably end up going mad staying at home alone whilst I work.

Thank you again!!


#12 Bridge

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Posted 08 October 2012 - 01:08 AM

Bridge,

Thanks very much, that has really given us a lot to think about and we have discussed about this for a week now. Right now, it seems that the Tourist visa subclass 676 must be the only practical way for her to come here. I think we have to pray that the condition 8503 does not get imposed. I am under the impression that there is only a small chance that it will be.

She is a very smart and educated girl from Barcelona and has worked in two multinational companies, and she has been here before for university exchange and has many friends here as well. Is my understanding correct in that the commissioner will only impose a condition 8503 depending on where the person is from and for which reasons they are to come? Because if she comes for reasons being "to catch up with old friends and visit more of Australia", the condition, in my opinion, shouldn't be imposed. Her last visit was on the Student Visa, and the condition as not imposed.

Assuming that she gets the 676 Tourist visa without condition 8503 imposed, is it true that she can apply to extend that visa for 3 months at a time for a maximum of 12 months? I am just wondering because after the 6th month, we would have been together for an over period of over 12 months, enough to satisfy the de-facto visa requirements and enable her to apply for the onshore de-facto visa (I hope!!)

Just to clarify from the last post, with the application of the de-facto visa, does that mean we automatically apply for a bridging visa as well? And what time-frame are we looking at for that bridging visa to be granted? and sorry for all the questions.. but how long would it take for the de-facto visa to be granted (I read it was 13 months) and would she be able to work whilst on the bridging visa? We have discussed that the main problem with her coming and dealing with these visa problems is that she might not be able to work, and would probably end up going mad staying at home alone whilst I work.

Thank you again!!


Hi Canguro,

You said your girlfriend is from Barcelona (Spain). Spanish passports are ETA eligible.

Your girlfriend could apply for a a ETA (visitor) visa subclass 976.

Condition 8503 cannot be imposed on an ETA visa.

The only condition that can (must) be imposed are:

8101 - The holder must not engage in work in Australia.

8201 - While in Australia, the holder must not engage, for more than 3 months, in any studies or training.

8527 - The holder must be free from tuberculosis at the time of travel to, and entry into, Australia.

8528 - The holder must not have one or more criminal convictions, for which the sentence or sentences (whether served or not) are for a total period of 12 months duration or more, at the time of travel to, and entry into, Australia.

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#13 canguro

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Posted 14 October 2012 - 12:19 AM

Thank Bridge, I was wondering if she was eligible for the ETA visa because I read that she might have to go to a travel agent to ask about it. That's great news.

Can I just ask a couple more questions?
  • Assuming she gets the ETA visa and comes to Australia, will we be able to extend it every 3 months for the 12 month maximum?
  • When we apply for the De-Facto Partner visa, will she be automatically on a bridging visa that will not allow her to work because she didn't have a working visa before applying for the De-Facto visa? Or is this a grey area we can appeal to?
Thank you very much.


#14 Bridge

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Posted 15 October 2012 - 11:40 PM

Thank Bridge, I was wondering if she was eligible for the ETA visa because I read that she might have to go to a travel agent to ask about it. That's great news.

Can I just ask a couple more questions?

  • Assuming she gets the ETA visa and comes to Australia, will we be able to extend it every 3 months for the 12 month maximum?
  • When we apply for the De-Facto Partner visa, will she be automatically on a bridging visa that will not allow her to work because she didn't have a working visa before applying for the De-Facto visa? Or is this a grey area we can appeal to?
Thank you very much.


It would be doubtful if it could be extended every 3 months for 12 months. Perhaps a 3 month extension, but 12 months very unlikely.

When applying for the partner visa, you apply for the bridging visa at the same time. The bridging visa does allow the holder to work until a decision is made on the partner visa.

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