19.12.2011
20.5 Partner visas form part of Australia’s family migration stream allowing non-citizens to enter and remain in Australia on the basis of their spouse or de facto relationship (both opposite and same-sex) with an Australian citizen or permanent resident.[4] All applicants for a partner visa must be sponsored by an Australian citizen or permanent resident.[5]
Partner visas
20.6 To obtain permanent residence on a partner visa, applicants must go through a two-stage process.[6] Irrespective of whether the visa application is made onshore or offshore, a partner visa application is an application for both a temporary and permanent visa.[7] In the first stage, a temporary visa is granted for a period of two years, on the basis that the parties are in a genuine spouse or de facto relationship.[8] After this probationary period, the relationship is reassessed and a permanent visa can only be granted if, among other things, the spouse or de facto relationship remains ‘genuine and continuing’.[9]
Prospective marriage visas
20.7 A non-citizen who wishes to enter Australia for the purpose of marrying an Australian sponsor can apply for a Prospective Marriage visa (Subclass 300),[10] that allows for entry into Australia for a nine-month period, within which the marriage must take place.[11] After the marriage, an application can be made for permanent residence on the basis of the married relationship via the two-stage process outlined above.
[4] See, generally, Department of Immigration and Citizenship, Fact Sheet 30: Family Stream Migration—Partners (2010) <www.immi.gov.au/media/fact-sheets/30partners.htm> at 13 December 2010. ‘Spouse’ is defined in Migration Act 1958 (Cth) s 5F and Migration Regulations 1994 (Cth) reg 1.15A; and ‘de facto partner’ in Migration Act 1958 (Cth) s 5CB, Migration Regulations 1994 (Cth) regs 1.09A, 2.03A.
[5]Migration Regulations 1994 (Cth) reg 1.20(2)(a). The sponsor undertakes, among other things, to assist the applicant, to the extent necessary, financially and in relation to accommodation for a two year period.
[6] See Immigration Advice and Rights Centre, Domestic/Family Violence and Australian Immigration Law (2009), 4–6 for a comprehensive outline of the different onshore and offshore categories, and the two- stage process.
[7] Applications are made at the same time and on the same form. See Department of Immigration and Citizenship, Form 47SP—Application for Migration to Australia by a Partner (2010) <www.immi.gov.au/allforms/pdf/47sp.pdf> at 13 December 2010. The definitions of temporary and permanent visas are set out in the Migration Act 1958 (Cth) s 30.
[8]Migration Regulations 1994 (Cth) reg 1.15A outlines the factors that must be considered in determining whether a spouse or de facto relationship is genuine.
[9] Permanent visas can be granted before the two year waiting period if, at the time of application, the relationship is considered a long-term partnership—three years or more or two years or more if there is a dependant child of the relationship. See, eg Migration Regulations 1994 (Cth) sch 2, cl 100.221(5) in relation to Subclass 100 visas.
[10] Migration Regulations 1994 (Cth) sch 2 cls 300.215, 300.216 require the applicant to establish that the parties genuinely intend to marry within the visa period and genuinely intend to live together as spouses.
[11] Ibid sch 2 cl 300.511.