Kah Lawyers is often asked to assist clients in preparing and lodging a Partner Visa Application. As one can glean from the Department’s website, Partner visas fall into two categories: Partner (Offshore) and Partner (Onshore) visas. To be eligible for this visa, an applicant has to be sponsored by their spouse or de facto partner who is either an Australian citizen or an Australian permanent resident or an eligible New Zealand Citizen. They also have to show that they are in a genuine and continuing relationship with their spouse or de facto partner at the time of application, and at the time of decision.
These applications are a two stage process – an applicant lodges an application for both the provisional and the permanent visas. Once the provisional visa is granted, the provisional visa holder is allowed to live and work in Australia until a decision is made on the permanent visa application. When the provisional visa holder becomes eligible for a permanent visa (i.e. two years after the initial application is made), the applicant and their sponsor must submit further evidence that show that they are still in a genuine and continuing relationship.
Criteria for a genuine and continuing relationship to the exclusion of others
Regardless of whether you are the spouse or de facto partner of an Australian citizen or an Australian permanent resident or an eligible New Zealand Citizen, you must show that you are in a genuine and continuing relationship to the exclusion of others. The Department uses the following factors in assessing whether a relationship is genuine and continuing:
- The financial aspects of a relationship, i.e. whether a couple has pooled their finances.;
- The nature of the household, i.e. the type of dwelling a couple lives in, how household chores are distributed and how parental responsibility is shared, if any;
- The social aspects of a relationship, i.e. does the couple project themselves as a couple to others; and
- The nature of mutual commitment, i.e. does the couple see their commitment to each other as a long term one.
This criteria is used by the Department to assess the genuineness of a relationship at the time of application and at the time of decision.
Lodging more evidence after the application for a provisional partner visa
Clients who wish to lodge partner visas are usually thorough in providing evidence of their relationship prior to lodging their application. However, there are times when the Department requests for evidence of the relationship prior to deciding if an applicant should be granted a provisional partner visa. Further processing times for provisional partner visas are long: at the time of this blog post, the processing times for provisional Partner (Onshore) visas range from 26 to 31 months while processing times for provisional Partner (Offshore) visas range from 14 months to 20 months. This means that by the time a case officer is allocated to the application, the evidence may be outdated.
In general, applicants for a provisional Partner (Onshore) visa usually find it easier to provide evidence that satisfies all four factors. After all, they usually live together, would have interacted with their neighbours, friends and family, and would have gone on outings together with their friends and family, or just alone to the cinema or out for dinner.
On the other hand, applicants for a provisional Partner (Offshore) visa would find it more difficult to provide evidence that satisfies all four factors. In such a situation, the couple could usually provide evidence of their constant contact while apart (e.g. Skype, WhatsApp transcripts), flight tickets which show that they travel to each other’s countries of residence to spend time together, and photos of each other with friends and family when they are in the same country. The more tech savvy applicants will set up a group on WhatsApp which allow both the couple and their family or friends to catch up with one another.
COVID-19 measures and what they mean for onshore partner visa applicants
On 29 March 2020, PM Scott Morrison announced a set of new social distancing rules which include the following:
- Gatherings are restricted to two persons at most unless they are from the same household.
- Weddings are still restricted to five people: the couple, the celebrant and two witnesses;
- The public cannot leave their house unless it is for an essential reason, i.e. to buy supplies, to exercise in a public space, to go for a medical appointment either in a clinic or at a pharmacy, or to go to work if work from home is not possible.
These measures, while necessary to slow the spread of the virus, present challenges for couples who wish to provide more evidence for their relationship. In particular, couples who tend to be more social and outgoing find that they cannot accumulate photographic evidence for the social aspect of their relationship during this period.
Accumulating evidence as a provisional Partner (Onshore) visa applicant
If you are an onshore Partner (Onshore) visa applicant, the good news is that you can still provide evidence of the other aspects of your relationship. For example, if you have a joint bank account, provide the transactions for this account since the lodgement date till present. If you enjoy shopping for presents for your partner, switch to ordering your presents online, and save the online order form, plus a photograph of the present that you have given to your partner. If you and your partner enjoy doing the groceries together but are concerned about the social distancing rules, switch to online grocery shopping where possible and save the confirmation orders as evidence of your household.
If you are concerned about the social aspects of the relationship, you can still rely on other evidence to show that you and your partner engage with your friends and family. If you have switched to contacting your friends and family via Facetime or Skype or other video call media, save the screenshots of both of you keeping in touch with friends and family. If you use WhatsApp, create a group on WhatsApp consisting of yourself, your partner and your mutual friends and continue communicating through this media. You can save a screenshot of the WhatApp group members and provide some screenshots of your conversations as evidence of the social aspects of your relationship. If you are less tech savvy and you and your partner prefer calling your friends on your mobile phone, keep a copy of the mobile phone bills and highlight the numbers for your friends, and ask your friends to provide statements in support of those calls.
Kah Lawyers understand that this is a difficult time for all our clients, especially those who have applied for a Partner (Onshore) visa. Our office is still open to accept telephone and Skype appointments from new and existing clients. Please do not hesitate to contact our office on (02) 9689 3173 for an appointment.
Disclaimer: This information is current at the time of publication and subject to change. The contents of this blog post is provided for general information only and Kah Lawyers does not accept any liability for any damages suffered by persons who relied on this information. This information does not constitute as legal advice and is not intended as a substitute for legal advice.