Each and every visa application has its own strange and often interesting background story. More than expected, their real-life situation is sometimes unbelievable and so much more fascinating than those fiction stories you read about, with its fair share of twists and turns.

Today’s case study is a Partner visa application that my colleague, Pip Panasbodi (MARN 9896337) has submitted to the Department.

The Sponsor

George (name changed for obvious reasons) is a British citizen and British passport holder. His family moved to Australia when he was barely 4 years old and has been an Australian Permanent Resident since. He has never applied for Australian Citizenship.

George married his high school sweetheart at the prime age of 22 and despite trying to make things work out, they ended up separating after 8 years. This happened over 3 decades ago and they have no children together.

The Applicant

Wendy (name changed) is a Thai national who has been living unlawfully in Australia for a bit over 3 years. By chance 2 years ago, she met George the second time. This time she is at his workplace applying for a position in a farm. After 5 months of knowing each other, she has officially moved into George’s home and begun their de facto relationship. With the blessings of their family and friends, George proposed to Wendy after living together for 1 month.

The Situation

Partner Visa 2

As with most partner visa cases, there were a number of questions raised by George and Wendy in their initial consultation with CP International.

1. Is George still married to his high school sweetheart, as has never receive any notification from the State regarding to his divorce?

George has informed us that he never received any documents from the State to show that he is officially divorced.

Under the Australian Immigration Law, since George has been separated permanently from his High School sweetheart 3 decades ago, he has to provide the reason explaining why a divorce certificate has not been obtained. Pip has advised him to declare it on his Statutory Declaration and provide legal documents to show his marital status to the Department. Documents such as his Medicare card and Notice of Assessment from the Australian Taxation Office were submitted.

According to the Australian Law, George is still legally married to his high school sweetheart, if she did not submit the Divorce papers to the State. This means that he will not be able to legally marry Wendy and he is unable to make an application for a marriage certificate in Wendy and his name. However, according to the Australian Immigration Law, you can potentially be in a de facto relationship, even if you are married to someone else. This is as long as it is monogamy; in the state of having a relationship with only one partner. By Australian Law, de facto relationship status will not exist if you are dating more than one person or being committed to more than one person.

2. Is it a problem that Wendy has been staying unlawfully in Australia for the past 3 years?

By overstaying in Australia without a valid visa can result Wendy being removed or deported from Australia. After being out of Australia, Wendy will also be barred by Australia for at least 5 years before she can return to Australia. Most of the time, Australia will not allow her to return back to Australia, even for a visit. Other countries will also have access to such information, in turn will also refuse her visa application(s) to their country due to her travel history and actions.

In terms of being an unlawful non-citizen applying for a Partner visa, individuals will have to undergo an additional criteria. This is known as Schedule 3. The removal of a Schedule 3 has to come down to compassionate and compelling circumstances that is unforeseen and not within Wendy’s control. In this case, Wendy is not in such situation, thus, it makes it even harder for her to fulfil the onshore Partner (Subclass 820) visa application.

3. Can Wendy’s children come to Australia as a dependent? And what about Wendy’s ex-partner who cannot be reached or contacted (Thai law requires the consent of both biological parents for a child to migrate)?

Only one of Wendy’s children can come under the Partner visa as a dependent applicant, this is her 17-year-old daughter. The reason being is because she is between age 18 to 25 (recent updates of the definition for ‘dependent child’ is being 18 – 23 years old). Any individuals over the age of 25, unless the individual is unable to work as they have total or partial loss of their bodily functions or mental incapacities. For Wendy’s case, her son is 24-years-old turning 25. So she has decided not to include her son in the application.

Regarding to Wendy being unable to contact her previous de facto partner, the biological father of her daughter, Pip has suggested for Wendy to seek help from the Local Police in Thailand by requesting for a search-for-missing-person report. These documents were submitted to the Department for consideration

4. Can Wendy lodge an application while remaining unlawful in Australia or does she have to go back to Thailand first and why?

As stated above, since Wendy is unable to fulfil Schedule 3’s criteria, she is unable to submit a valid Partner visa application in Australia. In addition, if Wendy was to submit the Partner visa whilst she is in Australia, her daughter will have to wait for Wendy to be granted a Temporary Partner visa before she is able to apply for a Child visa. This process will take twice as long for both mother and daughter, in comparison to lodging the Partner visa application outside of Australia.

Due to the reasons above, it is ideal for Wendy to go back to Thailand and lodge the Partner visa application (Subclass 309) offshore. This will not only save her more money and time, Wendy will be able to travel to Australia with her daughter after this visa is granted.

5. Does the Department call to interview Wendy and George?

Sometimes the Department do conduct an interview on the Sponsor and Applicant, it varies between application to application. Interview questions are based on the relationship between the Sponsor and Applicant. This is to ensure that there is consistency with the answers provided by both parties.  In this case, Wendy and George were required to undergo a telephone interview.

The Happy Ending

Partner Visa 2

In the end, the hard work of both the clients and Migration Agent have been paid off, Wendy and her daughter were able to unite with George on a Temporary Partner (Subclass 309) visa, just 6 months after the lodgement of the combined Partner visa application. They will just have to wait for another two years before the Department sends an invitation for them to apply for a Permanent Partner (Subclass 100) visa.

Have questions about your Australian visa application or status? Want to apply to study, work or live in Australia?Get in touch with the Dr Visa Team at:

 

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