Dmartyos

Dear all - Just a quick one Ive asked similar question

My girlfriend is coming over with me - Im PR resident & will be continuing to stay on in Oz.

She is coming on a working holiday visa for 1 year. However she is under 30/degree can qualify for Skilled herself -

Now after her 1 year working visa & we have lived together in Oz for 8/10 months & she has to leave the country to complete the visa.
She could come back on an ETA, continue living together & after a couple of weeks put in my application for defacto.

How long does the application take?

Im at my wits end with this trying to work out a legal way of applying for a couple to stay on together.

question = Can a person go from ETA visa onto defacto without causing problem or being against the law? Has it happended before?

Thanks Marty

Mark Webster

Marty,

It's certainly possible to apply onshore for a spouse visa whilst holding an ETA.

Main thing to be aware of is that she will need to be a genuine tourist on entry to Australia. If the DIMIA officials at the airport suspect that her only purpose in travelling to Australia is to lodge for PR, then her ETA might be cancelled and she would be refused entry to Australia.

processing time for spouse visas lodged in Australia is very quick - a complete application is commonly granted within a week.

Rgds,

Luke I Amyofath

Its quite common for eta holders to apply to migrate however, in the case of a defacto relationship you have to prove youve been living together in a commited relationship for at least a year which could be a problem since before an eta holder lands he fills out the dimia form which asks "do you intend to stay in australia more than 12 months"
If you are in a defacto and want to prove that fact, would it be a lie to answer the dimia form question with a "no" ? Thats the only problem I can see with eta and defacto application.
The way around it I suppose could be that yes, you are in a defacto, yes you intend to remain in that relationship but "no" at time of entry you didnt intend on staying more than 12 months, but decided to after arriving.

JAJ

ETAs are not for people intending to live in Australia. The incoming passenger card asks this question very clearly.

In the circumstances you describe, she's going to be returning on an ETA just after spending a year in Australia on a working holiday visa. At the very least this is likely to provoke some curiosity on the part of the immigration officer.

Do you plan to get married at some stage?



Jeremy

Dmartyos

Cheers guys for the responses - Im expecting to get married but it wouldnt be for a few years & after working things out.

I dont want to do anything that goes against the legal requirements its just thinking ahead.

I know that the working holiday visa will not give us enough time living together for the 12 months. Will be more like 10/11 months.

ETA is a possibility then but its a dodgy one, Im more hopeful with a student visa then. Does anyone know if this can be applied for onshore whilst on a working holiday visa? Or would they have to go back to their country to apply.
Also the duration from application?

This way if the person gets a legal student visa, then qualifies for defacto a couple of weeks later seems a better route.

Thanks all Marty

JAJ

British citizens (under current rules) cannot normally apply for a student visa onshore in Australia. Only a few nationalities can.

However it might be possible to send the application to DIMIA in Auckland or London while in Australia on a WHV. Student visa application rules are very complex, so get advice from an agent in Australia (make sure the agent knows about student visas) as to whether this is possible.

There is no bridging visa available on the basis of an offshore application like this so she would have to time things well as her status in Australia could not be extended on the basis of an unfinalised visa application. She would have to go offshore for visa grant.

There is normally no problem with a student visa holder moving to a spouse visa onshore. It is possible for a no further stay condition to be put on a student visa, however - I don't know how likely this is for a British citizen but you ought to check with a professional.


Jeremy

Dmartyos

[QUOTE=JAJ]British citizens (under current rules) cannot normally apply for a student visa onshore in Australia. Only a few nationalities can.

However it might be possible to send the application to DIMIA in Auckland or London while in Australia on a WHV. Student visa application rules are very complex, so get advice from an agent in Australia (make sure the agent knows about student visas) as to whether this is possible.

There is no bridging visa available on the basis of an offshore application like this so she would have to time things well as her status in Australia could not be extended on the basis of an unfinalised visa application. She would have to go offshore for visa grant.

There is normally no problem with a student visa holder moving to a spouse visa onshore. It is possible for a no further stay condition to be put on a student visa, however - I don't know how likely this is for a British citizen but you ought to check with a professional.


Thanks alot Jeremy

The person in question is French nationality. Therefore French passport.
Do you know whether this country is ok for students to study in Oz?

The likelyhood is that the person would apply for student visa - then get it sent to Auckland, pick it up & go through as a student. Maybe study for 3/6 months, then go on defacto.

Ever thought of being a migration agent yourself? You seem to have loads of good info & could make a packet from it!

Cheers Marty

JAJ

French citizens are Assessment Level 1 and hence can apply for a student visa onshore *if* they are legitimately in Australia on another visa without a 'no further stay' condition.
http://www.immi.gov.au/allforms/pdf/1219i.pdf

British citizens are welcome to study in Australia, they just can't normally apply onshore (Assessment Level 2) except for a small number of student visas. Even French citizens are normally expected to apply offshore, as the ETA is not for those intending a long stay in Australia.

She can normally switch from a WHV to a student visa, however there are a number of issues including:

- the WHV also requires that the person plans to leave Australia, so she only ought to make plans like this after arriving;
- she must apply for a student visa before the stay allowed on a WHV expires
- she needs to make sure the student visa she chooses isn't going to attract a 'no further stay' condition
- once the student visa is granted her WHV will be cancelled and unless specific circumstances apply, she will not be able to get another one.

If she's going to come to Australia on a WHV anyway, you should get advice on all these issues (and more) after arriving. Student visas are a complex area.

Contact IARC in Sydney for a referral to a competent agent (be prepared to pay such agent). http://www.iarc.asn.au


Jeremy

JAJ

Incidentally if you're already in a de-facto relationship (even if the 12 months limit hasn't been reached) then you should declare this to DIMIA, as it's a specific question on form 47SK. Assuming you've not already done so.


When new PRs sponsor for spouse visas, one of the first thing DIMIA looks at is whether the 'spouse' existed at the time the migration visa was granted. A de-facto relationship of less than 12 months doesn't count as a 'spouse' but the form asks for details of any such relationship.


However a casual relationship does not count as 'de-facto'.

Jeremy

Dmartyos

However a casual relationship does not count as 'de-facto'.

Jeremy[/QUOTE]

Cheers Jeremy - Were in a relationship but this started seriously after I sent off skilled ind application 04/05. We dont live together but have been on holiday as a couple & have booked flights together. We have 2 different addresses that we live in. She has hers & I have mine. Therefore I dont think were classed as defacto.

She has applied for WHV on her own & I have applied for skilled ind by myself, wasent great timing in the end but one of those things.

That was my concern that we werent classed as defacto in DIMAs eyes & as the working holiday visa only lasts 1 year (without living on a farm in the outback for 3 months) & so we'd need longer to prove our relationship.

Anyway, thanks for your input to my problem, appreciated!

Mark Webster

Cheers Jeremy - Were in a relationship but this started seriously after I sent off skilled ind application 04/05. We dont live together but have been on holiday as a couple & have booked flights together. We have 2 different addresses that we live in. She has hers & I have mine. Therefore I dont think were classed as defacto.

She has applied for WHV on her own & I have applied for skilled ind by myself, wasent great timing in the end but one of those things.

That was my concern that we werent classed as defacto in DIMAs eyes & as the working holiday visa only lasts 1 year (without living on a farm in the outback for 3 months) & so we'd need longer to prove our relationship.

Anyway, thanks for your input to my problem, appreciated![/QUOTE]

Marty,

Couple of points:

* You can't qualify for a spouse visa on defacto grounds unless you are living together, or at least not apart on a permanent basis. In extreme circumstances, you can meet the requirements if you maintain separate residences but this is very much the exception (ie where you are not permitted to live together under the law of your country of residence)

* It is better to err on the side of caution in declaring your relationship to DIMIA. You are obliged to notify DIMIA of any changes of circumstances until your skilled application is granted and you enter Australia on the skilled visa. If you don't declare your relationship for your skilled application, and subsequently apply for a spouse visa, DIMIA is going to ask you why the relationship was not declared previously. Unless you have a very good explanation, this could seriously harm her chances of getting the spouse visa.

PS: Migration advice is a very competitive industry - I doubt that many people are making a packet out of it!

Hope this helps,