Permanent Spouse Visa-Australia
In 1996, in response to the problem of bogus marriages, the Australian government introduced a two stage process for spouse and interdependent partner visas. Initially a temporary visa would be granted, and after 2 years, if the relationship was ongoing, a permanent visa would be made available.
The 2 year temporary visa
- The temporary visa is (for spouses), subclass 309 if granted offshore, and 820 if granted onshore. It's known as a "2 year visa" but is in fact valid until the permanent visa application is decided, which is usually longer than 2 years.
- 2 years after the anniversary of the application for the temporary visa, there is scope to grant the permanent visa.
- DIAC should contact you 1-2 months before this date. You must ensure they have your up to date address.
- If they do not contact you on time, contact them (this is important).
- There is no new application form or fee (this is all included at the time of applying for the temporary visa) but ongoing evidence of the relationship plus new police checks as applicable must be submitted to DIAC.
- Processing times for the permanent visa are not quick, unfortunately. It is considered low priority. 6 months has been typical in 2008-09.
Breakdown of relationship in the two year period
- As a general principle, if the relationship breaks down or otherwise ends before permanent residence is granted, the non-Australian partner is expected to leave Australia
- There are exceptions dealing with:
- if the Australian citizen or permanent resident partner dies; or
- there is domestic violence involved (immediate professional assistance is needed); or
- there is a child of the relationship, and an Australian court has granted the non-Australian partner custody or access rights
- further exceptions may require Ministerial Discretion, which is difficult to obtain, but is an option in exceptional or unusual cases not anticipated by the Regulations
- In some circumstances, a person whose relationship has broken down, may be able to remain in Australia on a different basis (such as a work visa) but this is often difficult.
Other consequences of the temporary visa
- Day to day, it's not a huge problem. Visa holders have unrestricted work rights and are eligible for Medicare. However, there are some problems.
- Employment. Some employers will not want to hire a temporary visa holder for a permanent position. (however, in some cases the employer may sponsor for permanent residence - see below).
- Study. Spouse visa holders may study, but at tertiary level, are obliged to pay overseas fees.
- Banking and credit. Obtaining credit may be difficult, depending on the institution.
Immediate permanent visa : Long Term Relationship
- Some people, in a "long term relationship", can be granted a permanent visa straight away.
- The criteria are as follows:
- if there is a child of the relationship, at least 2 years cohabitation; or
- in other cases, 3 years cohabitation (for those who applied before 27 March 2010, it was 5 years cohabitation)
- It is the responsibility of the visa applicant to provide evidence of cohabitation. Case officer will not assume anything.
- This criteria is assessed at the time of application for the temporary visa. It is not reassessed based on circumstances any time after that.
- However, if you really did have a long term relationship when you applied, and you still only got the temporary visa, you can ask for the permanent visa to be granted based on the circumstances at the time of application. They can do that. What they cannot do is reassess if you only meet the "long term relationship" criteria after you apply for the temporary visa.
How to get a permanent visa early
- There are number of legal ways to mitigate or otherwise reduce the 2 year temporary visa period.
- If you meet the criteria for a long term relationship after arriving in Australia, you can make a new application for a spouse visa onshore. You will pay a new visa fee, but they will then look at you being in a long term relationship.
- If you are in no rush to move to Australia, you can apply early. There is no legal requirement for the 2 year temporary visa period to be spent in Australia, and as long as you can show that you still have a genuine an intention to move to Australia, there is no reason why the permanent visa should not be granted (note that from time to time, DIAC looks at this intention clause more strictly).
- Alternatively, if you're close to the threshold for a "long term relationship", consider delaying your application until this point. Bear in mind that if your partner were to die in the meantime, there would be no visa for you. If you don't want to wait, consider a second application further down the line.
- If you qualify for an Employer Nomination visa, your Australian employer may sponsor you (and in the meantime, you can start work on your spouse visa). It is not possible to switch onshore to an employer visa from a spouse visa, but it is possible to do an offshore based application.
- Similarly, if you qualify for a skilled migration visa, you may apply for this instead. There is no obligation on spouses to apply for a spouse visa if another visa, such as skilled, is more appropriate. If you can get a state nomination, or are on the Critical Skills List, a skilled visa should not take an excessively long period of time.
- It is legally possible to apply for a skilled migration visa, and then a temporary spouse visa to get you to Australia while you wait. It does involve paying the visa fee twice, and going offshore for visa grant, but it can be done.
- All of these options, although quite do-able, are a little complex and there are some traps for the unwary, so it is advisable to get good professional assistance if contemplating any of them.