1. What type of visa is this?

This visa is for Partner migration which is generally a 2-stage process.

First, when requirements are met, a temporary visa will be granted.  This is obviously a very important stage where things can go wrong if the application is not properly made. 

Subject to some exceptions, two years later, the relationship and other requirements will again be assessed and the applicant considered for a permanent visa.

People intending to marry may apply for a Prospective Marriage visa and will have a 9 month period after they are granted a temporary visa, to enter Australia and then get married before they apply for a Spouse visa based on their married relationship.

2.  Who can apply?

A person can apply if they are in a relationship with an Australian citizen, Australian permanent resident or an eligible New Zealand citizen. The relationship should be:

2.1  a married relationship;

2.2  a de facto relationship;

2.3  a prospective marriage (fiancé(e)); or

2.4  an interdependent relationship (interdependent relationships are usually a same sex partner relationships).

Clear evidence will be required to prove each of the above relationships. 

3.  Categories

3.1  Spouse and De Facto

(a)  Genuine relationship requirement

You must be able to prove:

(i)   you and your spouse have a commitment to a shared life as spouses, whether or not you are legally married, to the exclusion of all others;

(ii)  your relationship is genuine and continuing; and

(iii) you and your spouse live together, or do not live separately and apart, on a permanent basis.

(b)    De facto relationship requirement

You and your de facto partner must have been in a spouse-like relationship for at least 12 months immediately prior to applying for a visa, unless:

(i)   your partner was granted a permanent humanitarian visa and was in the relationship with you before that visa was granted and this was declared to the department at the time; or

(ii)  you can establish compassionate and compelling circumstances – these include having dependent children from the relationship.

(c)      Application process

People applying both in Australia or overseas under the spouse category go through a two-stage process. The process involves applying for a temporary visa and a permanent visa. 

At the first stage, the temporary visa application will be considered.

However, you may be eligible for a permanent residence visa immediately if:

(i)  you have been in a relationship for 5 years;

(ii) if you have been in a relationship for 2 years and you have a child or children with the partner.

The second stage, two years after making the application, involves consideration of the permanent visa application.

(iii) Stage 1 - spouse temporary visa

This stage involves assessment of your eligibility for a temporary visa based on your application. You will be asked to attend an interview to enable the department to further assess your application.  This is where we as lawyers can help you. 

If you successfully complete the first stage of processing, you will be granted a temporary visa which will be in effect until a decision is made on your application for the permanent visa, or that application is withdrawn.

(iv) Stage 2 - spouse permanent visa

This stage of processing will begin approximately two years after you have lodged your visa application and involves assessment of your eligibility for a permanent visa.

There are provisions to waive the two-year wait period. These include:

(A)  where you have been in the relationship with your spouse for five years or more at the time of application; or

(B)  where you have been in the relationship with your spouse for two years at the time of application and where there are dependent children of the relationship; or

(C)  your spouse was granted a permanent visa under the humanitarian program or was granted a protection visa and was in the relationship with you before the visa was granted and this relationship was declared to the department at the time.

At both processing stages, you will be required to provide evidence that the relationship between you and your spouse is genuine and continuing.

You and your spouse may be asked to attend an interview.

If you meet all the requirements you will be granted a permanent visa.

(d)     If the relationship ends before the second stage of processing

If the relationship ends while you have a temporary visa, you must inform the department immediately. You may still be eligible for a permanent visa, without having to fulfill the normal two-year waiting period, if:

(i)   after entering Australia the relationship breaks down and you or a member of your family are the victim of domestic violence committed by your spouse; or

(ii)  after entering Australia the relationship breaks down and you and your Australian spouse have children under 18 years of age; or

(iii) after entering Australia, your spouse dies.

3.2  Fiancé(e)

(a) Genuine relationship requirement

You must be able to prove:

(i)  you genuinely intend to marry your fiancé(e) within nine months from the date you are granted a visa, and intend to then live with your partner as their spouse; and

(ii)  you and your fiancé(e) have met and are personally known to each other.

(b) Age requirement

In Australia, you must be aged 18 years or over.  If you are aged 16 or 17 years of age and in Australia and wish to sponsor your finacé(e) who is aged over 18 years and over, your parent or guardian must be your partner’s sponsor.  Your parent or guardian must be an Australian citizen or permanent resident or eligible New Zealand citizen. 

(c) Application Process

Your application for a prospective marriage fiancé(e) visa must be lodged outside Australia and you must be outside Australia when you apply.  There is no provision for lodging a fiancé application onshore in Australia.

People applying under the prospective marriage fiancé(e) category go through a three-stage process.

The process involves applying for a prospective marriage temporary visa at the first stage, and a spouse temporary visa and spouse permanent visa at the second and third stage.

(d) Stage 1 - Prospective Marriage temporary visa –

This stage involves assessment of your eligibility for a temporary visa based on your application.

You and your spouse may be asked to attend an interview to enable the department to further assess your application.  Proper and full preparation for such an interview is obviously important.

You will also be asked to undergo a medical examination and provide character clearances.

If you successfully complete the first stage of processing, you will be granted a temporary visa which will be valid for nine months from when it is granted.

Within those nine months you must travel to Australia, marry your fiancé(e) and apply for the spouse temporary and permanent visas in Australia.

(e)  Stage 2 - Spouse temporary visa –

This stage of processing will begin when you apply in Australia for the spouse temporary and permanent visas after your marriage.

You will be required to complete the relevant forms, pay the required charge and provide evidence that your marriage has taken place and is genuine and continuing. You and your spouse may be asked to attend an interview.

If you successfully complete this stage of processing, you will be granted a temporary visa which will be in effect until a decision is made on your application for a permanent visa.

(f)  Stage 3 - Spouse permanent visa

This stage of processing will begin approximately two years after you lodge your application for spouse temporary and permanent visas and involves an assessment of your eligibility for a permanent visa.

You will be required to provide evidence that the relationship between you and your spouse is genuine and continuing.

If you have lived in Australia for more than one year, you will be required to provide an Australian police clearance.

You may also be required to provide clearances from other countries you have visited since your spouse temporary visa was granted.

You and your spouse may be asked to attend an interview.

If you meet all the requirements, you will be granted a permanent visa.

(g)  End of relationship before the third stage of processing

If the relationship ends while you have a temporary visa, you must inform the department immediately. You may still be eligible for a permanent visa, without having to fulfill the normal two-year waiting period, if:

(i)  after entering Australia and marrying your fiancé(e), the relationship breaks down and you or a member of your family are the victim of domestic violence committed by your spouse; or

(ii)   after entering Australia and marrying your fiancé(e), the relationship breaks down and you and your Australian spouse have children under 18 years of age; or

(iii)  after entering Australia, your spouse dies.

(h)  Marrying before the visa application is decided

You must notify the visa processing office immediately and request that the application be processed as a spouse visa application.

4. Process and how Friedman Lurie Singh &D’Angelo can help

4.1  You must apply for the visa by making an application to the Australian Immigration Department (DIAC) with supporting documentary evidence, detailed written submissions and paying the applicable fee.

4.2  Our Special Services for You

(a)  all advice from our lawyers/agents registered with the Migration Agents’ Registration Authority of Australia;

(b)  free initial telephone or email advice on the merits of your application;

(c)  fixed fee first consultation;

(d)  fixed fee costs arrangements.

4.3   Our Migration Division can help you with the following:

(a)  fully and correctly completing all DIAC forms;

(b)  identifying and obtaining all supporting documents for your application;

(c)   identifying any issues in your application, advising you on how to deal with them, preparing detailed written submissions, addressing all legal and factual issues and presenting arguments in respect of any particular problems;

(d)   advising you on obtaining third party evidence including character and police clearances and medical certifications;

(e)   certifying (free) photocopies of all original documents;

(f)    obtaining official translations where required;

(g)   arranging lodgement of your application at the designated office of the DIMIA (incorrect lodgement may invalidate the application);

(h)   briefing you on interviews with DIAC (if any) and post-lodgement procedures,

(i)     liaising with DIAC and other Federal authorities in Australia where required;

(j)     giving you ongoing advice until a decision is made by DIAC.

5.  What You Should not Do

5.1 This is an important application. Errors can seriously jeopardise the result.

5.2  As examples, and as a guide, you should be careful of the following:

(a)   you need to test that the evidence that you are producing is acceptable for your visa;

(b)   do not ignore any issues and problems hoping that DIAC will miss them;

(c)   do not breach the terms of any visa you may hold at present;

(d)   do not breach any immigration laws/regulations;

(e)   do not file an incomplete application (all parts must correctly filled in);

(f)    do not leave out any supporting evidence;

(g)   if your sponsor has previously sponsored or nominated a partner or was sponsored or nominated themselves as a partner.

6.  Processing Time

Approval of the visa takes approximately 3-6 months (range is neither the minimum nor the maximum) subject to DIAC’s workload.

7.   What will it cost me?

7.1  We offer FREE initial advice on the telephone or by email. See our Special Services above.

7.2  Before you appoint us as your migration agent, we will provide to you in writing a schedule of costs and charges for your approval.

7.3  As costs and charges change regularly, please contact us for the current charges which may include the following:

(a)  application fee (payable to DIAC);

(b)  Police clearance (payable to police authorities);

(c)  health clearance (payable to doctors);

(d)  translation fees;

(e)  Goods and Services Tax;

(f)   our fees;

8.  What Next and How to Contact Us

8.1  Contact us for FREE initial advice - it costs you nothing to have a chat with us.

8.2   Ask for our Migration Division as follows:

(a)   telephone from within Australia: (08) 9325 6133;

(b)   telephone international + 618 9325 6133;

(c)    email: migration@flsd.com.au

(d)   visit our website: www.flsd.com.au 

 Dated: 12 December 2007

 Please note that the above general information is correct as at the date stated above. Unless you obtain specific migration advice relating to your particular circumstances, you should not act (or fail to act) on general information.