If an applicant’s motives to enter a marriage are primarily to get a visa in Australia, does it matter?
Will evidence that the applicant is in a genuine spousal relationship be disregarded, if the applicant’s primary motive is simply to receive a visa?
According to the Australian Federal Circuit Court, a motive to gain Permanent Residency will not be fatal to your Partner Visa Application.
This was reviewed recently in a court case, which saw an applicant who was originally an Egyptian citizen, move to Australia in 2005 on a student visa. This applicant met his sponsor (partner) in 2013 and they married that year and had a civil marriage by the beginning of 2014. After the civil marriage ceremony, the applicant’s student visa was due to expire in four months.
The applicant filled out a partner visa application which was backed up with supporting material, including declarations of witnesses to the relationship and extensive supporting evidence.
The Tribunal agreed that the applicant and the sponsor had a valid marriage under Australian law and acknowledged that there was consistent oral evidence that showed that a genuine and committed relationship existed between the couple. However, the Tribunal argued against the applicant’s motivation, stating that it had concerns that the ‘relationship was arranged to enable the applicant to remain in Australia.’ The Tribunal found that this may outweigh other evidence within the case and decided the sponsor and the applicant did not actually have a mutual commitment to a shared life together and claimed their relationship was not ‘genuine’.
Fortunately for the couple, the Judge held that, even though the applicant’s motivation for entering a marriage with the sponsor may have been influenced by a desire to remain in Australia, it is not mutually exclusive to the existence of a genuine marriage relationship. In other words, even though there was a view to material benefit or advancement, both parties have a ‘mutual commitment to a shared life, as husband and wife to the exclusion of all others.’
In this case, the Judge ruled that even if the applicant’s main reason to enter a spousal relationship with his sponsor was to remain in Australia, this motive is not mutually exclusive with there being a genuine de facto relationship.
Overall, it does not matter if an applicant’s motives to enter a marriage are primarily based around obtaining a visa in Australia, as long as there is evidence that shows a genuine relationship between the visa applicant and the sponsor.
Are you Eligible for a Partner Visa?
You must be in a genuine relationship with your de facto partner or spouse who is:
- Australian permanent resident
- Eligible New Zealand Citizen
- Australian citizen
What is the Partner (Provisional) Subclass 309 Visa?
A visa applicant that is a de facto partner or spouse of an Australian citizen, Australian permanent resident or eligible New Zealand citizen live in Australia temporarily. Through this visa, the applicant has a pathway toward the permanent Partner visa (subclass 100). When applying for this temporary visa, you must be outside Australia. The cost of this visa starts from $7,715 and processing times can take up to 16 months to 21 months.
What is the Partner (Migrant) Subclass 100 Visa?
This is a permanent visa that allows de facto partner or spouse of a sponsor to live in Australia permanently. This is often granted to those that have previously held a temporary Partner visa (subclass 309). Processing times for most applicants can range from 20 months to 32 months.
What is the Partner (Temporary) Subclass 820 Visa?
When applying for this temporary Partner visa, the de facto partner or spouse of a sponsor must be in Australia. Family who apply with you must also be in Australia. With this visa, you can live, work and study in Australia whilst the Department process your permanent Partner visa (Subclass 801). You may also travel to and from Australia as many times as you want and are given free English language classes, which are provided by the Adult Migrant English Program.
What is the Partner (Permanent) Subclass 801 Visa?
This permanent Partner visa allows you to live, work and study in Australia indefinitely. You may also sponsor eligible family members to come to Australia and if you are eligible you may apply for Australian citizenship. In order to secure this visa option, you must have held a temporary Partner visa (subclass 820), whilst remaining in a married or de facto relationship with your sponsor. This visa often takes from 12 months to 19 months to process.
Most visa applicants that apply for a partner visa (de factor visa) fear that they may receive a visa refusal, as they do not have enough evidence that show the existence of a genuine relationship. Visa applicants must be aware that it is not about the quantity of material and evidence, but rather its’ to do with the corroborative value of the documents that are submitted. Results Migration can help you decide what is relevant in your partner visa application and how to deal with shortcomings that may arise in your support material.
The visa applicant and the sponsor must both provide clear, separate personal statements in relation to their relationship. This statement must be able to paint a picture for the Department about where you met, what important dates have occurred along the way, as well as how the relationship has progressed over time.
If you need assistance or advice with your visa application, Results Migration are the best in the field, with a team of experienced migration lawyers and registered migration agents that are available to guide you through this complex area of law. Call Results Migration on 1800 808 717 or email us on [email protected] and book your free consultation today!
