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Six permanent residency rules for couples or partners

In the year ending June 2007, Australia granted permanent residency to 161,000 migration applicants. About 25% of them came in as partners of Australians. These include de-facto, gay and lesbian partners.

1.  At what time can a partner visa be lodged?

A partner can be either overseas or in Australia at the time of lodging a migration application with the Immigration Department.

The time an Australian partner visa application can be lodged varies. It depends on the nature of the partner relationship.

For married couples, it can be any time after the marriage. For de-facto couples, it is 12 months after they have been living together or 12 months after they have been in a documented committed relationship. For gay or lesbian couples, it is 12 months after they have been living together or 12 months after they have been in a documented committed relationship.

The 12 month rule does not apply (with limited exceptions) if the couple:

  • have a child, or
  • cannot live in the applicant's home country (where there is anti-gay persecution for instance).

If in Australia, the applicant must not have condition 8503 on their visa to be able to apply. The visa label will state this (or not), and there are only extremely limited exceptions to this.

2.  Can I be a sponsor?

An applicant must be sponsored by the applicant's partner. The partner must be an:

  • Australian citizen (in which case can live many years overseas - there is no need for residency in Australia)
  • Australian permanent resident (is ordinarily living in Australia. If there is evidence of the person being ordinarily settled in Australia, the person can sponsor as soon as obtaining permanent residency)
  • eligible New Zealand citizen (that is, was ordinarily living in Australia as at 26 February 2001).

3.  Do I need a level of English before I can get a Partner Visa?

No. Whether you can get a Partner Visa will depend on the existence of a relationship with an Australian. English is not required or assessed.

4.  I've got permanent residency and I'm a parent. Can I sponsor my partner for a Partner Visa?

There are considerable delays in obtaining a standard parent visa.

Consequently a number of applicants go the path of the Contributory Parent Visa (CPV), but this has quite high fees attached.

As a way of bypassing these fees, it is possible for one partner of a parent couple to apply for the CPV. Once obtained, a parent after coming to Australia can sponsor his or her partner for a Partner Visa. There is no obligation for both parents to apply for the CPV, and the Immigration Department accepts this arrangement (but doesn't advertise it!). A parent applying for the Partner Visa this way would save some $35,000 in fees

5.  Can I sponsor twice?

Yes. However, to sponsor again a sponsor ordinarily must have only sponsored once before, at least five years earlier.

This rule will also apply to you if you have come to Australia on a Partner Visa, and you now wish to sponsor someone from overseas for a Partner Visa.

There are some exceptions to these rules.

6.  My Australian partner died or committed domestic violence on me, what can I do?

Ordinarily, an applicant is granted a temporary partner visa initially, and then must wait at least two years from the date of lodgement before obtaining a permanent Partner Visa.

However an assessment for permanent residency will be immediately made if:

  • The Australian partner commits domestic violence against the visa applicant or their family
  • There is a child of the relationship and the applicant has custody or access to that child
  • The Australian sponsor dies

These six rules are of course general statements regarding legal requirements. Email or call me for advice on your specific facts. After an initial dialogue to assess needs, I will provide you with fees information for further assistance.


Author:

Paul Hense BA, LLB, BSW (University of Sydney), Principal, Paul Hense Migration Lawyers

Tel (61 2) 9262 4242  |  Email: paul.hense [AT] henselaw.com.au

If you wish to proceed to personalised assistance from Mr Hense of any inquiry, it will be done on a strict fee for service basis.

Mr Hense has been a migration lawyer since 1994. He has run a number of landmark cases, including before the High Court of Australia. He frequently represents clients before the Migration Review Tribunal and Refugee Review Tribunal. He has lectured for the University of NSW on refugee law and for the Immigration Advice and Rights Centre.  From 1990 and until recently he was a volunteer with the Immigration Advice and Rights Service. Previously he was a Senior Research Officer for the Australian Taxation Office.


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