Did you know that in some limited circumstances, even if the relationship between an applicant and their sponsoring partner breaks down, the applicant may still be able to obtain an Australian partner visa? In some cases, this is even possible after a divorce.
What is a Partner Visa?
In a broad overview of how partner visas operate, it is important to note that you can obtain a partner visa if you are in a married, or de facto relationship with your sponsoring partner. The sponsoring partner must be an Australian citizen, or permanent resident. After the visa application has been lodged and assessed, the Department of Home Affairs will first grant a temporary visa (the subclass 820 visa).
The couple must then wait two years, and after this time they will be eligible to apply for a permanent visa (the subclass 801 visa). Due to the nature of partner visa’s, the relationship must be one which continues for a long period of time. Specifically, you must already be in a relationship before you lodge the application, when the temporary visa is granted, and once the temporary visa is converted to the permanent visa.
Any couple looking to apply for this type of visa must take into account the processing times. It is typical for 3 to 4 years to pass between when the initial application is lodged and when the temporary visa is converted to the permanent one.
It is important to keep in mind that a lot of things can happen in a relationship during this time, and it would be hugely unfair on applicants that have already started developing roots in Australia to refuse them the right to stay just because the relationship with their sponsoring partner has ended.
When the relationship breaks down
When a relationship breaks down, all is not lost for visa applicants. There are some limited circumstances where a partner visa can be obtained even though the relationship has ended, as listed below:
- The sponsoring partner dies
This first scenario will apply in the unfortunate circumstance of the sponsor’s death. In this case, the applicant will be required to satisfy the Department that the relationship would have continued if the sponsoring partner had not passed away.
If the applicant is able to prove this, then the visa can be granted. However, it is important to be aware that in this scenario there is the additional requirement that the applicant prove that they have developed strong cultural, personal, or business ties to Australia.
If the applicant can satisfy the Department that the relationship would have continued and that they have developed strong personal, cultural, or businesses ties to Australia, then the Department will usually issue a permanent partner visa straight away. This means that the applicant will not have to wait the additional two years for the temporary visa to be converted to the permanent one.
- Family violence has occurred
The second scenario arises when the relationship breaks down due to the applicant, or his, or her dependant child suffering family violence by the sponsoring partner.
The term ‘family violence’ is broadly defined in the migration regulations and involves actual, or threatened conduct, which makes the applicant or their child fear for their personal safety.
The family violence provisions are extremely important, because without them, the applicant may feel as though they have no choice but to stay in the relationship to obtain their Australian visa. This is obviously a situation the Department wants to avoid and something no one should be required to suffer through for the grant of a visa.
The next step involves proving that family violence has occurred. The evidence required for this is prescribed in the regulations and must be adhered to in order to satisfy the Department that family violence has occurred before a visa is granted.
If a court order is already in effect which protects the applicant from violence by the sponsor, or if the sponsor has been convicted for violence, then the Department will accept that family violence has occurred. However, if there is no court order in place, the applicant will be required to prepare a statutory declaration which outlines the family violence suffered as well as providing other evidence as prescribed in the regulations, for example, a psychologist report.
It is important to note that the Department may either accept the evidence provided, or they must refer the matter to an independent expert to express their opinion as to whether the family violence has occurred. If this happens, then the Department must accept the opinion of the expert as correct.
What if neither of the above scenarios applies?
If there is a relationship breakdown outside of the circumstances outlined above, the bad news is that the visa applicant has very limited options. If they want to remain living in Australia, they will have to find another suitable visa. For instance, the applicant may be in a position where they have strong ties to an Australian employer and can explore other employer-sponsored visa options.
If either of the above situations applies to you, or you would like to find out more about Australian partner visas or other visa options, the experienced team of immigration lawyers at Results Migration are experts in the field. To book in for a free consultation call us on 180
