One of the most distressing situations for couples that has arisen as a result of the covid-19 pandemic is that they have been separated and have no idea when they will get to see each other again. Closed borders in Australia mean that your Australian citizen (or permanent resident) partner will not be able to visit you in Australia for the foreseable future. The reality is that it may not be until the end of the year. How do you survive this separation? It’s highly distressing, emotional and has a tumultuous affect on your life. Are there any solutions? How does your partner get into Australia? Well, there is certainly no quick fix but you can start planning now and lodge your application.
Surviving separation and planning for togetherness!
Processing times are very long, more than a year for the offshore partner, so the sooner your application is in the system, the sooner the processing countdown starts. You don’t have to wait until borders are open. You can start preparing now. Navigating the maze of partner visa information on the Department of Home Affairs website can leave you feeling more lost than before you started. It doesn’t answer all of your questions and, importantly, it doesn’t give you the specific information you need relevant to your situation.
Prepare well. Don’t waste your hard-earned money
Don’t be misguided into thinking that you might qualify for the visa. There is a lot to loose if you don’t meet the criteria and the application is refused, not the least of which is your money! The visa application charge (VAC) for the main applicant is AUD$7,715.00. It won’t be refunded if you make a mistake.
A common misunderstanding!
One of the common misconceptions about a partner visa based on a de facto relationship is the ‘minimum period’ relationship requirement. Applicants are required to have been in a relationship for at least 12 months immediately prior to the date of application (unless there are compelling and compassionate circumstances for the grant of the visa. However, it is not a requirement that applicants have cohabitated for the entire period. Section 5CB(2)(c) of The Migration Act requires the couple to live together or not live separately and apart on a permanent basis. A relevant Full Court judgement found that there is no requirement that de facto partners live together before a partner visa application is lodged. The court found that cohabitation is not necessary to establish a de facto relationship.
Be careful though!
The court decision means that a delegate of the Department cannot find that an applicant does not meet section 5CB(2)(c) solely on the basis that the applicant and their claimed de facto partner never lived together before the visa application was made, or were not living together at the time the application was made, or were not living together at the time the application is decided. However, the application can be refused for failure to evidence that the relationship is genuine and continuing. You have to be able to show the Department that any separation is temporary and that you will, at some point in the future, live with your de facto partner.
Always seek specific advice about your situation. Don’t rely on friends’ advice. All cases are different. You should know exactly how your situation will or will not satisfy the law.