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bridge
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Posts posted by bridge
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I have read back over the OP's post again and for the life of me I cannot see how they would be able to satisfy DIAC to the requisite degree that they are in a de facto relationship as prescribed by the Migration Regulations 1994. It is clear they are in a relationship together, but the application must satisfy the criteria set out in the Migration Regulations, not just some broad dictionary meaning of the words. DIAC will apply the circumstances of the applicant and sponsor to the regulations. If they fall short of the requirements that application will not be successful. Look at many of the published decisions on the Migration Review Tribunal website where exactly that has happened.
Put aside all financial requirements for the sake of this exercise and presume there is ample evidence and documentation as to an ongoing relationship.
Simple question for you as i am curious as to what an expert believes is the case.
In your expert opinion, can you get a defacto oz visa for your partner if you have not lived together for the previous 12 months due to either work or study commitments in Australia?
If relying on de facto and you have not lived together for the previous twelve months I do not believe the application will be successful. Ultimately the individual facts of each case will determine the outcome. If there has been a long term relationship (and by relationship I mean as defined by the Migration Regulations) periods of separation will be okay. One needs to look at ALL of the requirements of the Migration regulations and what DIAC takes into account.
The financial aspects of the relationship, including:
- any joint ownership of real estate or other major assets; and
- any joint liabilities; and
- the extent of any pooling of financial resources, especially in relation to major financial commitments; and
- whether one person in the relationship owes any legal obligation in respect of the other; and
- the basis of any sharing of day-to-day household expenses; and
the nature of the household, including:
- any joint responsibility for the care and support of children; and
- the living arrangements of the persons; and
- any sharing of the responsibility for housework; and
the social aspects of the relationship, including:
- whether the persons represent themselves to other people as being married to each other; and
- the opinion of the persons' friends and acquaintances about the nature of the relationship; and
- any basis on which the persons plan and undertake joint social activities; and
the nature of the persons' commitment to each other, including:
- the duration of the relationship; and
- the length of time during which the persons have lived together; and
- the degree of companionship and emotional support that the persons draw from each other; and
- whether the persons see the relationship as a long-term one.
As I have previously stated, based on the information provided by the OP they would not satisfy the de facto relationship criteria.
- any joint ownership of real estate or other major assets; and
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I can offer you no advice re visas to Thailand, but am more than happy to steer you in the right direction re visas to Oz. Perhaps send me a PM.
Bridge
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I have read back over the OP's post again and for the life of me I cannot see how they would be able to satisfy DIAC to the requisite degree that they are in a de facto relationship as prescribed by the Migration Regulations 1994. It is clear they are in a relationship together, but the application must satisfy the criteria set out in the Migration Regulations, not just some broad dictionary meaning of the words. DIAC will apply the circumstances of the applicant and sponsor to the regulations. If they fall short of the requirements that application will not be successful. Look at many of the published decisions on the Migration Review Tribunal website where exactly that has happened.
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Isnt that what i said without all the technical jargon and references?
Once again i ask you, where in your opinion would there be a problem meeting the requirements for a defacto visa based on the original post by the BM?
He has stated that he has substantial and complete evidence of the ongoing and exclusive nature of the relationship and obviously has financial capability to be able to save and pay for a semester tuition upfront so financial support of his partner shouldnt be a problem.
If anything, i would eliminate any mention of the interest in uni till the visa was granted.
I dont profess to know it all just interested in others views.
The Migration regulations, or as you put it 'technical jargon and references' are what DIAC actually use to assess whether an applicant and sponsor are in a de facto relationship. From what the OP has stated I don't disagree that they have been in a long term relationship, but are they in a de facto relationship as required by the Migration Regulations? I would say no they are not. Look again at post #5 of the OP "Mate, we have actually thought about this but we won't satisfy the year or 6 month living together criteria, otherwise we would". .
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Probably easier to keep posting here than as PM's and may help someone else like yourself in the meantime.
This is whats applicable to you.
You and your partner must have been in a de facto relationship for the entire 12 months immediately prior to lodging your application.
You and your partner must show a mutual commitment to a shared life to the exclusion of all others. You and your partner must be living together or, if not, any separation must be only temporary. You must also have a genuine and continuing relationship with your partner.
Work or study in a different country are grounds for living separately so dont panic IMHO you will meet the criteria for this easily based on your post.
If living apart if may be very difficult to satisfy the criteria pursuant to reg 1.15A of the Migration Regulations:
Dont really understand your point. What criteria is not being met?
My friend just got the defacto visa for his partner and his circumstances were not much different to the BM's.
As long as you have all the necessary documentation of the ongoing nature of the relationship being longer than 12 months and can meet the financial obligations necessary so your partner doesnt face the likelihood of applying for social security in Australia he should be fine.
As a worse case scenario if the financials are borderline i believe a monetary bond could be asked for.
Are you an agent?
Misterwolf,
There are two very different issues here but both must be satisfied for the successful grant of a partner visa. Firstly the sponsorship requirement and secondly the relationship requirement which involves evidencing a genuine, continuing, mutually exclusive commitment to a shared life together as husband and wife (whether it be de jure or de facto). An application can be refused if one does not satisfy the sponsorship requirements but satisfies the relationship requirement, and vice versa. To this extent both requirements are mutually exclusive.
The sponsorship requirements can be found by looking at regulation 1.20(2)© of the Migration Regulations 1994. In short a sponsor must be able to evidence that they have the ability to assist their partner during the two years after the grant of the temporary partner visa (for example if an offshore partner visa that would be a subclass 309). In assessing whether or not to approve a sponsorship undertaking DIAC will examine the sponsor’s circumstances to determine whether the sponsor has the ability to comply with their sponsorship obligations. If it is determined that sponsor does not, then the application may be refused. However, DIAC policy provides that the decision-maker must consider requesting an Assurance of Support from a third party before refusing an application. A sponsorship undertaking is different from evidencing a genuine relationship.
The relationship requirement can be found by looking at regulation 1.15A of the Migration Regulations. Whether the application is based on de facto or de jure it must evidence a genuine, continuing, mutually exclusive commitment to a shared life together as husband and wife. Regulation 1.15A sets out the relevant factors that DIAC considers in determining whether or not a genuine spousal relationship exists (note – it is my view that apart from the information contained in the 40SP and 47SP, the applicant and sponsors relationship statements are one of the most important supporting documents submitted with an application. A thoroughly prepared relationship statement would address the criteria found in regulation 1.15A.
For legally married couples there is no set length of time that they must have lived together. However relationships where the applicant and sponsor have lived together for a period of more than 6 months are more likely to be considered genuine by DIAC.
With regards to de facto relationships there is what’s known as the 12 month rule. Applicant and sponsor relying on de facto grounds must provide evidence that in the immediate 12 months before application they were in a mutually exclusive relationship and commitment to a shared life as husband and wife, the relationship is genuine and continuing and they do not live apart on a permanent basis. DIAC policy provides that unless establish compelling and compassionate circumstances exists the applicant and sponsor must have been living together for at least 12 months. Although living together does not require the couple to have been living together under the one roof for the 12 entire months, there should not be significant periods of separation. Unless there is a child to the relationship applicants should avoid lodging a spouse visa application based on a de facto relationship unless they have evidence of living together in a de facto relationship for at least 12 months before making the application.
I have referred to two important regulations under the Migration Regulations 1994, namely regulation 1.20(2)© and 1.15A. I have also referred to DIAC policy (how DIAC interpret the regulations). Any DIAC decision-maker will have a copy of the Procedures Advice Manual (PAM3) in front of them when assessing a visa application. PAMS3 is great resources but it is unfortunately only available to the public by subscription and unfortunately it is not cheap. Alternatively some local Australian libraries might subscribe to it where you can access it for free.
Bridge
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Probably easier to keep posting here than as PM's and may help someone else like yourself in the meantime.
This is whats applicable to you.
You and your partner must have been in a de facto relationship for the entire 12 months immediately prior to lodging your application.
You and your partner must show a mutual commitment to a shared life to the exclusion of all others. You and your partner must be living together or, if not, any separation must be only temporary. You must also have a genuine and continuing relationship with your partner.
Work or study in a different country are grounds for living separately so dont panic IMHO you will meet the criteria for this easily based on your post.
If living apart if may be very difficult to satisfy the criteria pursuant to reg 1.15A of the Migration Regulations:
http://www.austlii.edu.au/au/legis/cth/consol_reg/mr1994227/s1.15a.html
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Cant help you with your particular visa but just curious as to why you wouldnt just apply for a defacto visa as it seems you would meet all the criteria and the financial requirements are a lot less onerous?
Good luck with whichever way you go.
Mate, we have actually thought about this but we won't satisfy the year or 6 month living together criteria, otherwise we would.
Given you circumstances I would consider a prospective marriage visa (s/c 300) over that of a student visa.
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Just an update, we applied for Tourist Visa on 23/9/11, got a message back today to say it was ready for collection at VFS, just picked it up, 3 Month, multiple entry, valid for 12 months, NO conditions attatched and NO medical asked for, cant believe it, exactly what we planned for, thanks to those who posted advice.
Congratulations.
I'm just a little confused. Is this a standard 3 month TV just with multiple entries or am i misreading something?
I thought medicals were only required for anything over 3 months.
My partner is here in oz on her second TV. The first one was 3 months and this one is for 6 months which she needed a medical clearance for.
If the visa permits the holder to remain in Australia for more than 3 months continuously. For example 6 months single entry, then x-ray required. As a 12 month ME max 3 month stay doesn't, no x-ray. Kind of makes a mockery of the health requirement doesn't it?
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quote)I had a client who was granted a 12 month multiple entry tourist visa with a maximum 3 month each stay. She returned to Thailand after 3 months (1 week) before returning to Australia.
She was pulled aside by Immigration upon arrival and told in no uncertain terms that 'visas runs' might be acceptable in Thailand, but not in Australia, and that is she did it again she would
be put put on the first plane back as she was clearly not a genuine visitor.Quote)
Hi Bridge
It sounds to me as if your client encountered a DIAC officer having a bad day (no excuse).
The chances of her visa being cancelled for multiple visits one after the other would be remote
but it can happen. If DIAC thought she may be in breach of her visa conditions like working, they
would've pulled her in for an interview. It seems as if she was just spoken to on the line.
If she's with a boyfriend, they may've thought she's trying to get the 12 months de facto rule up.
You could always lodge a complaint and try to get clarification but I bet nothing would've been
put on file and therefore it's a classic "her word versus my word".
Not great but not a lot you can do I'm afraid.
Regards
Will
Will,
A think that is a pretty accurate assessment.
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Something doesn't add up Bridge,
maybe something lost in the translation
This is her 2nd 12 month m/e within 3 years and I think she had been doing very brief visits back to Thailand and then back to Oz to get a further 3 months. Immigration can always make a determination at Immigration clearance that a visa holder is no longer has the intending to visit Australia as a genuine visitor. Of course there is a process to go through, but can happen nonetheless.
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I had a client who was granted a 12 month multiple entry tourist visa with a maximum 3 month each stay. She returned to Thailand after 3 months (1 week) before returning to Australia. She was pulled aside by Immigration upon arrival and told in no uncertain terms that 'visas runs' might be acceptable in Thailand, but not in Australia, and that is she did it again she would be put put on the first plane back as she was clearly not a genuine visitor.
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RIP Ken ...
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Am I missing something, your son paid TB40 more per JW than his own for a ladies drink - cheap enteratainment.
ps. 6 in an hour, what was she a fish?
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I don't know why everyone is getting their knickers in a knot. They were just copying Prince Harry:-
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Secret recipe. It's a chain and they have a branch at the fourth floor of Airport Plaza.
Sounds to my the same if you say MC Donalds has the best burgers in town.
The New York cheesecake at Secret Recipe is great.
Agreed yes it is a chain, but not in the same class as McD's....
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From what you have stated, the son was included as a non-migrating dependant. You will therefore need to apply for a subclass 445 visa an obtain consent from the father, or have a court order that the mother has sole custody.
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Well done and good luck!
Application in - FANTASTIC.
Please keep us updated.
ps. Thanks for the kind words.
Bridge
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Cheers, thanks for that i will call them in the morning
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Does the fee fluctuate or do they only set it monthly/weekly? The VFS web site still has 66,150 baht
six monthly. Just updated last month. Next will be after new years
The price is 1,995 Australian dollars. It seems absurd (along with almost everything regarding this process) that it now costs 2180 Australian dollars to apply.
I posted on this issue on the 1st of July. DIAC deems a rate, if the exchange rates fluctuates beyond this then it can be considerably cheaper to pay the visa application charge onshore.
How to Save on Visa Application Charges:-
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Is there anywhere in Chiang Mai that does windscreen repairs? Just a small star (*) that needs to be fixed.
Many thanks
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Thanks Graham, great link.
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The OP is not an eligible sponsor for s/c 679. And assuming his wife
isn't a permanent resident, neither is she.
Will have to be s/c 676.
Regards
Will
I agree with Will the OP would not be an eligible sponsor for his wife's niece even though they are legally married. Eligible relationship do not include 'in-laws'. If the OP's wife was a permanent resident then she would be an eligible sponsor for the purposes of a s/c 679 application.
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Bridge, that's correct. It's hardly an agent for VFS, it is just a courier service for them.
<VFS rant>The girl is a robot and just wanted everything in front of her. I tried explaining that the police report can wait, because we have to go to bangkok. She insisted it needs to be there. So I rang the embassy, got the correct info, preferred, but by no means essential to 'lodge' the application. So I rang her back and advised her of this. That wasn't good enough, it had to be someone from VFS. I explained that it's not VFS that process this (as far as I know), but the embassy and that the embassy was fine with it. She wouldn't have a bar of it. I had to speak to someone at VFS and get confirmation... but hang on, she's the agent??
I rang VFS Bangkok and the guy there confirmed that the police report is indeed NOT required to make the submission. "Just tell the girl it's ok." I informed him she would not take it without said police report. He did add, if I had any further problems with her, to tell her to call the VFS office direct and he would put her straight.
I'm beginning to wonder, what are these people here for?</rant>
As it turns out, we need to go to her ampur anyway and get a letter from them re her birth certificate. What we have is not good enough (illegible). So we're going to go to Bangkok anyway now and do it in person.
Oh @logarythm, I asked her about the "evidencing" of the documents and would she stamp them, she had NO idea what I was talking about. Bangkok might be the way to go, or just mail it in directly to the embassy <-- we've done three tourist visas like this and didn't have a problem.
A good comment about VFS, if I didn't go in there today, I wouldn't have known about the old forms. Not that I think the embassy would have totally rejected them anyway... I've just downloaded the new one and compared it... The difference?
1. Question 82 has the wording:
In which countries have you lived for 12 months (in total) or more during the last 10 years?
Please include details for all members of your family unit included in your visa application.
and is now worded:
In which countries have you lived for 12 months (in total) or more during the last 10 years?
Please do not write ‘Nil’ or ‘N/A’. Include details for all members of your family unit included in your visa application.
Funnily enough, I had left it blank, although almost did put N/A in there, simply because it is "not applicable"
2. The checklist (Q85) where it asks about partner by marriage applicant's, before it said to include a marriage certificate (2 words), now it says:
Marriage certificateIf married in Australia: Certified copy of the Registered Marriage Certificate issued by the Registry of Births, Deaths and Marriages from the state or territory in which the marriage took place
If married outside Australia: Certified copy of official document showing that the marriage is legally recognised in the country in which the marriage took place.
With these two points in mind, is this application "unacceptable"? I hardly think so. We actually do have the official marriage certificate from BDM anyway, so we were covered.
All in all, I don't see any reason why our application couldn't have been accepted today. This sort of bureaucracy is exactly why we hate bureaucracy!
Ah well, I've completed the new forms, and will just have to wait til next week to send them off.
Hi Madivad,
What a nightmare for you huh??
In answer to your PM (for the benefit of others). Applications can be lodged with VFS or sent directly to the Embassy - totally up to you. I do however find that processing is faster when lodged with VFS. I think when sent directly to the Embassy the app's spends to much time in the 'mail room'. Whilst you wouldn't notice much of a time difference with regards to a partner app, it would drag a tourist visa out well past the standard processing time of 5 working days. As much as a pain VFS can be, it does streamline the process somewhat.
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Madivad,
You would have dealt with the courier company in Phuket contracted to deliver applications to VFS.
1. You do not need a Thai police clearance certificate to submit a valid partner visa application. Dont waste a trip to Bangkok just for this. Go back on Monday and insist they accept the application as it is. It is only a requirement under the Migration Regulations 1994 that you make a 'valid' application, and not a 'complete' application. In fact you don't even need the Form 888's at time of application. You can also provide the translations later too.
Im not saying don't not submit the best application possible, but don't waste a trip to Bangkok because of bad advice from someone who does not know what they are talking about.
Lastly, use the current forms and yes I have heard of bank drafts been rejected because of a full stop in the wrong place.
Higher Education Sector (Subclass 573) Visa
in Visas and migration to other countries
Posted · Edited by bridge
I think it could be argued that you are living together and not permanently apart. One strong word of caution your relationship is very short. look at ALL the requirements I posted earlier from the Migration Regulations. How many can you address?