There are a number of visa options for partners of Australian citizens, Australian permanent residents or eligible New Zealand citizens to enter and/or permanently remain in Australia. The specific subclass of visa is dependent upon the nature of the relationship and whether the applicant is inside or outside Australia.
An Australian citizen, an Australian permanent resident or an eligible New Zealand citizen may sponsor their partner on the basis of:
- marriage;
- a de facto relationship; or
- an interdependent relationship (i.e. a same sex relationship).
Where the application is based upon a marriage, that marriage must be legal under Australian law. In most cases, if a marriage was considered valid in the country in which it took place, it will be recognised under Australian law. There are some exceptions including, for example, polygamous, same-sex or underage marriages.
If the application is based on a de facto relationship, the de facto relationship must have existed for the 12 month period prior to lodging the application.
Where the application is based on an existing marriage or de facto relationship, the applicant must apply for an onshore temporary spouse visa (subclass 820) if he or she is inside Australia at the time of the application, or an offshore temporary spouse visa (subclass 309) if he or she is outside Australia at the time of the application.
Interdependency visas (subclasses 826 and 310) apply to same sex relationships. The applicant must generally demonstrate that he or she has been living in an interdependent relationship for 12 months prior to lodging the application.
Regardless of whether the application is based on marriage, a de facto relationship, or an interdependent relationship, the applicant must provide evidence that the relationship is genuine and continuing. This includes evidence of living together full-time, shared financial and social commitments, and establishing a household separate from other people.
If the Minister for Immigration and Citizenship is not satisfied that the relationship was genuine and continuing as at the date of the visa application, the visa will not be granted. The was the situation in the recent decision of Ally v Minister for Immigration and Citizenship, [2008] FCAFC 49. The decision of the Minister’s delegate not to grant the visa was affirmed by the Refugee Review Tribunal and ultimately by the Full Court of the Federal Court of Australia. The Tribunal found that the applicant and the nominator were not in a genuine and continuing relationship. In particular, it was not satisfied that the applicant and her nominator had ever established a separate household together. In part this finding was based on the fact that the alleged household property had been leased by the nominator and a third party, and that only their names (and not the applicant’s) were on the answering machine message. Similarly, the nominator had not advised the applicant of an important personal circumstance, namely his HIV positive status. This evidence supported the decision not to grant the visa.
Where the Minister for Immigration and Citizenship is satisfied that the criteria for the issuance of a visa have been satisfied, a spouse temporary visa (subclass 820or 309) or an interdependency visa (subclass 826 or 310) will be issued for a waiting period. The waiting period is ordinarily two years. During this time the visa holder may remain in Australia with his or her partner until a decision is made regarding a permanent visa. Temporary visa holders may work and study in Australia. If the relationship still exists after the waiting period has elapsed, a permanent spouse visa (subclass 801 or 100) or a permanent interdependency visa (subclass 814 or 110) will be granted.
If an applicant is located outside Australia, there is also a prospective marriage visa (subclass 100). The purpose of this visa is to allow the applicant to enter Australia for the purpose of getting married. The marriage must take place during the nine month period in which the visa is valid. This visa entitles the holder to enter and leave Australia an unlimited number of times during that nine month period. The visa holder can work or study in Australia and can apply for a spouse visa following the marriage.