KTMEXC

Hi,

I'm hoping someone will be able to advise on my dilemma.

Myself and my girlfriend are British citizens, live in the UK and have been together for 5 years (living together for 3). I applied for and was granted permanent residency earlier this year and intend to activate my visa and/or emigrate before last entry date next year.

It has always been my dream to move to Australia but not so much my girlfriend's and although our relationship is strong, we have different interests and at the time I applied I was having doubts for the future so did not include her on the application. I was open with her about what I was doing throughout the whole process but I don't think we seriously sat down and discussed the implications.

Now that I have been granted and the reality has hit home she has expressed an interest in joining me for the sake of keeping the relationship together. Also I am not sure if I can just leave her like that so I would like to look at the options and let her decide. I cannot cancel and reapply for my visa so I am looking at the partner visa subclass 309.

1. It states the sponsor can be a permanent resident. Do I need to activate my visa to be that permanent resident and therefore be the sponsor?

2. It also states "show that you and your partner have been in a de facto relationship for the entire 12 months immediately prior to lodging your
application" and that "If you are an Australian permanent resident or eligible New Zealand citizen, you are required to be usually
resident in Australia".

I can show that we have been together for 5 years and living together for 3 in the UK but assuming the above means I need to move to Australia first how can I show we have been living together for the last 12 months once I have moved to Australia if my girlfriend will not be with me? Or can I use the 5 years we were together in the UK once I have moved to Australia.

3. Can I apply from the UK based on my grant but before activating my permanent residency? If not, could I activate my permanent residency, return to the UK, then apply for the subclass 309 while we are both outside Australia?

Many thanks,

K

Pollyana

Hi and welcome to BE

The first question is - did you declare that you were in a relationship with her when you went for your own PR?
It sounds as if she would be applying as a de facto, and not through marriage? In which case you have to prove 12 months of cohabitation. But if part (or all) of that 12 months was during your application, then you should have declared her as a partner.
It may be that you will have to start counting the 12 months from when your visa was granted, which would mean discounting all the time beforehand - worth a discussion with an agent maybe before applying. The time would still count as evidence of a relationship. just not as official evidence of a de facto relship for migration purposes.

Assuming that you didn't declare her as a non-migrating spouse you can come to Aus, validate your visa and then return home and get the 12 months. Then she can apply even though you are outside of Aus. Many couples have applied from the UK and moved here together.

KTMEXC

Pollyana,

Thanks for your reply.

I don't ever remember being asked on my application what my relationship status was and I certainly didn't mention her by name on my application. I do remember being asked if I wanted to add any dependents or partners. When I applied I assumed adding partners to a visa application was meant for spouses. I didn't realize you could add a defacto partner until later, but this wasn't the main reason why I only applied for myself.

Yes, we are not married so she would apply as de facto. But I don't understand why I would declare her on my original application if it was for me only and I am not married. Or are you saying DIAC would look at my original application to see if I had declared my non-migrating girlfriend?

The final bit is good to hear thanks. So the 12 months would count from the date of the grant not the date of activation? That 1 year wouldn't be far off my activation date so I could come back to the UK and apply for her offshore. That's useful to know, thankyou.

Bermudashorts

You have problems here, not declaring a partner you clearly had means you did not provide full information and your own visa is now at risk should this be discovered. There is no point dancing around this point, you had a duty to read the instructions properly and it most certainly does ask about partners.

As Polly mentioned, the only way you would get away with this is if say you met your partner after the visa was granted. But I don't know that gets you into more trouble, means you got to ask people to lie on personal statements etc. maybe you are digging an even bigger one than the one you are already in.

I think maybe some professional help to get this mess sorted out would be a good idea.

KTMEXC

I've have never considered myself to be in any hole. I answered all questions in good faith and truthfully and my expectation was for us to split up and myself to emigrate. Researching a little more online I believe one of the status' was "never been married". What is wrong with choosing "never been married" if I have never been married?

We are talking a girlfriend here not a wife or son/daughter. Who's to say we didn't break up for the week I submitted my application.

I don't understand why anyone needs to declare a girlfriend or boyfriend for an application they are explicity making for themselves.

old.sparkles

If we are only talking about a girlfriend then she wouldn't be eligible for a partner visa. Partner visas are for those who are married, or in a defacto relationship.

Bermudashorts

You are in a hole and you do need to understand that you are. One wrong move now and you are in a very tricky situation, certainly if you explained your situation to immigration the way you have here, you are at high risk of losing your visa and possibly more.

Living with somebody for three years is a partner. You want to announce her as a partner now for the partner visa, so quite clearly you are aware that marriage is not required.

As to your comment about "who's to know" if you broke up or whatever, the answer is you know and you are obliged to provide information and updates as your situation changes.

To apply for a partner visa now, by announcing that the person you lived with for three years wasn't a partner then, would be a bold move indeed. IMHO you need to tread very carefully with this and I would get professional advice to move forward.

Pollyana

It is a tricky one and I'm sure you aren't the first to be in this position, which is partly why I suggest talking to a registered agent.

If she is 'just' a girlfriend, no of course you would not add her to the original application. But the view that DIBP take of de facto partners means that if you were in a proper de facto re'ship you shoud have declared her either as part of the application or as a non-migrating spouse. If you then split up, you tell them to remove her from the application - same as if you had a wife and divorced her during the process.
Get some good advice before she does her application. There are several agents that post on here and are highly recommended - George Lombard, Alan Collett and TeeTMI are three that come to mind.

KTMEXC

Ok thanks for the advice everyone. I will try and contact an agent to discuss. The truth is when i applied for my PR our relationship was at a crossroads. I could see my life going one way and hers the other. I don't think either of us really discussed it in depth so I was left applying on my own with the intention of splitting up and emmigrating on my own. When i went through my application i did not know I could add a non marital partner, i assumed partners/dependents was for wives/husbands and family members and didn't even know what de facto meant. I didn't know what de facto meant until 2 days ago. "Never married" was what i put down on my application as i thought it was correct and the best match. I have never been married.

Had i of known i could have added my girlfriend of 5 years to my application it may not have changed my feelings at the time but it may have prompted us to talk about it more and discuss the options, of which i thought we had none.

Now that i have been granted reality has hit home and we seem closer than before so I would like to give her options. The reason for looking into the partner visa is a change of feelings towards our relationship. To just leave her now knowing that she is willing to emmigrate just to keep the relationship toghether fills me with guilt. Whether it lasts or not is another matter. However at no point during my application have i ever been untruthful.

It seems that if she does apply for a de facto visa in the future it risks bringing into question my original application and status of "never married" which was stated in good faith. I don't intend on fabricating figures and reducing our time together to fit in with my grant date so looks like that's it. Ironic that most people online seem to do everything they can to find more years to prove de facto.

So I can understand better what are the reasons/implications for declaring a non migrating de facto partner if at the time you apply your partner is not intending to migrate? If at the time i applied i did not envisage the relationship continuing then surely i could not state i was in a de facto relationship?

Pollyana

To be honest, I think as long as you present the case properly, based on your latest post, you may well be fine. You didn't realise the implications of not declaring her, and you didn't think the relationship would last. Very common situation. I am not an expert, but I've followed Spouse Visa cases for over 11 years now and thats the basis for my comments.
In your position - I would be contacting one of the agents mentioned above, be totally honest, and ask what they think you should do - and tell them you came from BE I honestly think there will be a way round it, and I'm just suggesting an agent cos I don't want the two of you to be shooting yourselves in the foot

Croker

Although I'm far from an expert on Australian immigration, I can tell that you've been given some sterling advice here. Why? Well, because I actually work for immigration in the UK. As such, there are two key pieces of advice here that you would do well to heed (and fortunately, it looks like you will).

(1) The first is to seek the advice of a migration agent, which - given the potential complexity of your situation - would be extremely wise.

(2) Secondly - and more importantly from my point of view - be totally honest with immigration at all times. If I were limited to only 3 words of advice for someone making a visa application, I would go with "NEVER, EVER LIE." We do this for a living and will jump on any inconsistencies in your application immediately. If we find out you've been lying, then not only will your visa application be refused, but the odds of you ever getting any other visa for the same country will be severely diminished because you will have a past history of deception. It doesn't matter if it's a lie of omission, or a "white lie" to avoid explaining a complex situation; all an immigration official will see is an applicant who has definitely lied about one thing, and will therefore think "what else are they lying about?". You absolutely couldn't put yourself in a worse position if you tried, so please do not play fast and loose with the truth, for your own sake!

Best of luck sorting it out - with professional advice and an honest approach, you may well be able to resolve this swiftly and effectively.

BruceGleeson

I am an Australian Lawyer and registered migration agent. I have a different idea for you but firstly need to know how old your girlfriend is?

Dorothy

Why? Perhaps you could just post your information so others could use it if needed. Oh, and if you're posting as a migration agent you should have your MARA number in your signature.

Pollyana

Welcome to BE. As Dorothy says we like agents to put their MAra number on their signature ( or in their posts until they are able to create a signatire.

I guess you are looking at a WHV option? What is your opinion thoug regarding the non-declaration of the relationship when the OP got PR?

KTMEXC

Not young enough to get a WHV.

Although previous posts have been helpful, there seems to be some implication in this thread that I have not been truthful in my visa application.

I'd like to clarify that I have never been untruthful and never will be untruthful on any visa application I have ever made or will make. I don't lie in life full stop, I don't need to.

1. My intention at the time I made my application was to emigrate alone and split up with my girlfriend. She had no intention of moving to Australia, I did.

2. I did not know what a de facto relationship was so listed myself as never married as I have never been married.

3. If my intention was to split up in the future and emigrate alone what should have been the correct status? "Never Married" or "De Facto". If I did not see our relationship continuing I may have inadvertently answered the question correctly.

Our relationship is stronger now and she has said she would emigrate to keep our relationship together. Whether it lasts or not who knows, however I'd like to know whether:

4. she could apply for a partner visa as defacto with 3 years living together WITHOUT jeopardising my visa on the basis that I listed myself as never married.


I am not looking to pull a fast one or get my girlfriend out to Australia with me. I am looking to clarify my options so that we are both aware of them and can discuss them together. It may very well be that we split up and I emigrate but before we make that small decision I`d like to know my options.

If anyone can clarify points 3 and 4 I'd be eternally grateful.