visitor visa denied, what next?

[Mr5o1]

Hey, first post, long time lurker.. I've never really felt the need to post before because so many questions are already asked and answered.

So basically I have a few questions around Australian visas & migration, I guess basically it comes down to, what visa is the most suitable for us...

To give you an overview, I'm Australian and my gf / partner / defacto is thai. She has been to Australia four times, each time with a 3 month visitor visa (tourist stream). We've never had any problems getting these visas via vfs (until now).

Our most recent application was knocked back yesterday, on the grounds that we failed clause 600.21, the decision letter we got reads as follows:

You have requested a stay in Australia of 3 months. In the application, you have stated that
the reason for requesting this period is to visit your de facto. However, an examination of
your immigration history in Australia also shows that of the last 10.3 months, you have been
in Australia for a total of 5.9 months.

Visitor policy states that in considering whether an applicant is a genuine visitor, decision-
makers should consider whether the applicant is attempting to circumvent proper migration
channels and use the visitor visa program to maintain an ongoing residence in Australia.
Visitor visas must not be granted to those persons whose true intentions, at the time of
applying for a visitor visa, are to use one or more visitor visas to maintain ongoing residence
in Australia.

As a result of the significant period of time you have already spent in Australia, I cannot be
satisfied that your expressed intention to only visit Australia is genuine.

I feel a bit silly for not knowing that repeat use of the visitor visa was a no-no. This incredibly informative post from user Surin13 sheds some more light on the situation..


I've seen a few other posts around here (like this one) which suggest it's something to do with us trying to obtain "de-facto residence" through multiple tourist visas. I didn't know this was a thing.

This post suggests visitors need to spend at least 50% of their time outside Australia, but I don't know how reliable this source is.

I can't find the source right now, but I've seen a few posts suggesting they got a warning from DIAC saying further tourist visas wouldn't be offered. They've not told us that, just that at the time of the application the officer wasn't convinced that my gf was really a visitor.

As somewhat of a contradiction, user ozemade seems to have achieved 3 tourist visas followed by two more 12 month multi entry tourist visas. I don't know how much time was spent in Australia during those 12 month visas though..

Anyhow, having looked into the situation over the last 12 hours, it seems like our options are really limited:

Visitor Visa (Tourist Stream)
The way I see it, I would be fairly confident of re-applying for the 3 month visitor visa (tourist stream), and invest a little more effort in explaining why she's a genuine visitor. To reiterate, we've not broken any terms of the last four visas, I think it's safe to say they're not worried about the risk of her overstaying, I think it's just that they think she's acting like someone who 'resides' in Australia. So, given that she owns an apartment, which isn't rented to anyone else, and contains all her furniture and personal effects et cetera, it would be fairly easy to illustrate that the apartment is her primary residence.

Visitor Visa (Sponsored Family Stream)
Another option, maybe a slight modification of the previous, would be to apply for a 'visiting family' stream instead of the tourist stream. I have to check if a defacto is considered family... but is it possible the DIAC is really saying that "she's not really a tourist" rather than "she's not really a visitor" ?

Partner / Defacto Visa
The third option would be the partner visa. We have been together for 3 years and can demonstrate that we have lived together for more than 18 months of that time. It'd be easy to get loads of stat decs from people who know us as a couple. The main problem here is that her name isn't on my rental lease, we don't have any shared bank accounts, no shared utilities or any of that, and it's possible (likely?) that the DIAC would take this to mean we're not really a defacto couple..

Prospective Partner / Fiance Visa
The fourth option is the fiance visa. I'm ok with that, and at the moment seems like maybe the best option... but the irony of the situation is just absurd. Before I realised that the tourist visa thing was going to run out, I'd already considered proposing to her. She's awesome, I don't have a problem with getting married.. so why not. Having said that, I think most people would have a fairly natural aversion to the idea of marrying someone purely for the reason that they can get a visa. In addition, it's natural that DIAC would scrutinize marriages to determine whether or not the marriage is merely a contrivance for the purposes of obtaining a visa.

What all this comes down to is that, according to DIAC, our relationship isn't serious enough to be a defacto couple, but it is serious enough for us to get married. This just seems like such a bizarre situation to me.. but anyway.

As an additional question, it looks like once we apply for the fiance visa, we just have to wait for that application to go through, even though it will take a long time (there's health complications). If anyone can confirm this would be great.

Maybe another way to briefly ask the same question.. for a not-quite-defacto couple, is there any way for her to spend more than 50% of her time in Australia, other than us getting married via the fiance visa?

Obviously, if you've taken the time to read all of this then I'm immensely grateful, I'd sincerely appreciate any and all advice you might be able to offer.

Thanks!

[Will27]

I'll have a crack and I'm sure others will be along shortly to give their advice.

Firstly, cross out the visitor visa family sponsored stream, that's not applicable to you.

Pretty much leaves you with a partner visa or another go at a visitor visa.

If you're going to reapply for a visitor visa, I'd suggest waiting at least 3 months.

It's not a case of you telling DIAC that her apartment is her primary residence.

They've basically told you that your girlfriend spends basically half of her time in

Australia and because of this, they don't deem her to be a genuine tourist/visitor.

It depends on what you want to do really. If you want your girlfriend to spend more than

50% of her time in Oz, the partner visa is the way to go. You could explore student visas

etc but IMO, partner visa is the best option.

To answer another question, You can apply for a visitor visa if you have a partner visa pending.

So my take is, apply for a visitor visa in 3 months (or later) or a partner visa to avoid all of

the visitor visa problems.

The bottom line is that the partner visa is a big commitment and expensive so you will have to be sure

where you and your partner want to live I guess.

All the best anyway.

Edited December 24, 2014 by Will27

[krisb]

Do you want folk here to help work out which visa you should apply for?

[Mr5o1]

Do you want folk here to help work out which visa you should apply for?

Well, I think I've pretty much figured it out thanks... The visitor visa's don't seem to be worth the trouble in the long term. We don't quite meet the criteria for the defacto visa. So we're left with the fiance visa. I guess I posted this thread just because I wanted some confirmation that I was on the right track with this, and that there wasn't some magic "Thai gf visiting Australia wheever the hell she wants" visa that I'd missed.

To add insult to injury I just noticed that the fiance visa application fee will increase from $3,085 to $4,630 on the first of January. What's up with the 50% increase?! I'll be honest in that both my gf and I are feeling pretty raw about this, I probably should have known, but it's just been a huge surprise to think I'd be picking her up from the airport next week or something, only to discover that we have to go through all this drama first. I'm doing my best to avoid launching into a pointless rant.

@Will27 thanks for the input mate. I'm stuck here in Aussieland for the time being with work, so pretty much our only option is to get her a permanent visa. Good to know she might be able to get another visitor visa while we're waiting for the prospective spouse visa.

[Surin13]

Our most recent application was knocked back yesterday, on the grounds that we failed clause 600.21

To be honest I am not surprised you were knocked back, the officer did the right thing to refuse the visa based on the requirements (which are set by government)

I've seen a few other posts around here (like this one) which suggest it's something to do with us trying to obtain "de-facto residence" through multiple tourist visas. I didn't know this was a thing.

Given the amount of time she has spent in Australia its not a hard conclusion to draw from that, especially if you referred to her as a partner/de-fecto

This post suggests visitors need to spend at least 50% of their time outside Australia, but I don't know how reliable this source is

There is no set time frame as such which explains why you see differences between peoples experiences, its whether they meet the requirement as a visitor. My post you linked to explains how they assess this, but 50% seems the norm if you want to put a figure on it.

I've seen a few posts suggesting they got a warning from DIAC saying further tourist visas wouldn't be offered. They've not told us that, just that at the time of the application the officer wasn't convinced that my gf was really a visitor

There is no requirement to tell you this, they seem to do it to assist people if they see a pattern, but they don't know if you will apply again. Edited December 24, 2014 by Surin13

[Surin13]

Anyhow, having looked into the situation over the last 12 hours, it seems like our options are really limited:

Visitor Visa (Tourist Stream)

You have already been told she doesn't meet the requirement, so unless you can they is no point applying for this.

Visitor Visa (Sponsored Family Stream)

Maybe? but I am not sure what they define as "partner" to apply for this. On the plus side it will be processed in Australia not Thailand, so maybe a different outcome.

Partner / Defacto Visa

You seem to meet the requirement for this, but the hard thing will be proving that you are a de-facto couple and have lived together for more than 12 months. Not that hard to do, but will require a bit of work.

Prospective Partner / Fiance Visa

Would be straight forward and an easy visa to get for you given your history together, requires less evidence than Partner/Defacto Visa.

Marrying to make the visa issue easy isn't that important to DIAC they are more interested that its a genuine relationship.

If you want to get married anyway, just get married now and apply for the Partner Visa that will solve your living together for 12 months evidence issue that you seem to think you have. It will work out cheaper for you this way also.

Edited December 24, 2014 by Surin13

[Surin13]

What all this comes down to is that, according to DIAC, our relationship isn't serious enough to be a defacto couple, but it is serious enough for us to get married. This just seems like such a bizarre situation to me.. but anyway.

DIAC has rules that it must follow and defacto relationships require that you have lived together for 12 months as one of the requirements, if you can't meet this requirement than you won't get the visa. Being married gets rid of this requirement (as per the rules)

once we apply for the fiance visa, we just have to wait for that application to go through, even though it will take a long time (there's health complications)

That's correct, you can join the other thread here then on partner visa waiting times. On the plus side you can apply for a tourist visa while you wait and would be more likely to get it if you have applied for a permanent visa, to kill the time apart.

Maybe another way to briefly ask the same question.. for a not-quite-defacto couple, is there any way for her to spend more than 50% of her time in Australia, other than us getting married via the fiance visa?

Look at the immigration website it has all the information you require, but given the latest refusal it would make getting other temporary visa's more difficult as it will look like she is trying to get around the refusal.

Edited December 24, 2014 by Surin13

[Mr5o1]

Hey Surin13, thanks so much for your input...

We were intending to get married sooner or later, putting a rush on it for a visa just sortof takes some of the romance out of things but I can deal with that

Our relationship (evidence wise) is rock solid. We have three years of photos and skype logs, not to mention 4 successful visa applications and stat decs from friends and family out the wazoo. Having said that, I believe that we would fail the defacto partner visa because we don't have any shared finances, and that is clearly stipulated as a requirement in the partner migration guide.

If I took two weeks of work, whirled over to thailand, and got married at the registry office, would that look like a 'contrivance' for the purposes of acquiring a visa? To be frank, that's exactly what it would be, but having said that even if we got married during the 9month fiance visa period would be a contrivance just the same...

[Surin13]

You don't fail to qualify for a defacto partner visa just because you don't have any shared finances or can't show evidence in other parts. They aren't that tough on you, just explain why you don't have any shared finances and as long as it reasonable there shouldn't be a problem. As I said before they are far more interested in that the relationship is real and on-going, the evidence they ask for is to show this, but everyone's situation is different so you need to tell them why you don't have something.

Remember that the examples they give of Evidence of your relationship are only a guide and are neither all inclusive or exclusive.

If this doesn't answer your question, provide more detail on which part you think you would fail. ie. page number or direct quote.

[David48]

My 2 cents worth.

First up ... great advice above ... a definite strength of the Forum.

Second up ... and it's a personal comment ... I reckon anyone (well the vast majority) is it's crazy to get 'Married' for a Visa.

The current processing time for a Prospective Marriage visa is 12 months ... http://www.immi.gov.au/about/charters/client-services-charter/visas/5.0.htm

Tell your Lassie to cool her heels, wait a while, some months, reapply for a Visitor Visa, Tourist Stream and ask for either a 6 month, single entry or a 12 month multiple entry.

General guide ... if you have spent more then 6 out of 12 months in a foreign country ... you ain't a tourist ... you are living there.

All of course, IMHO

[krisb]

The fiance visa you gotta get married before the visa expires.

Keep that in mind.

But, the bonus is she can work on that visa, then the partner visa bridges straight onto it.

That's the path we took anyway.

Edit to add, you have till January to get in before the visa price hike.

Think it through seriously.

Edited December 24, 2014 by krisb

[Gopro]

If it helps. I kept a log of dates in and out of oz for my girl. Showing 50% in both places or more outside. Had no trouble getting any visa for tourist using that method. Did this from the very first visa right through every visa showing exact amount of days. Ive seen DiBP be rough on counting when your borderline with friends visa when they are borderline 50% or more aby a month. Best counting the exact days=months for them so they get it right.

Edited December 29, 2014 by Gopro

[dbrenn]

I was in a similar situation, with not much supporting evidence for a de facto visa, even though we'd been living in Thailand as de facto for a few years.

The prospective marriage visa was the way we went, as it requires less supporting evidence. It all worked out. I went to Oz first, sponsored her for the visa. Supporting evidence was mainly lots of holiday photos and evidence that we had travelled together going back a few years. Sure she had to wait here until it was approved, but having just migrated to Oz I was busy over there starting a new job.

Once the visa is granted, you have 9 months to get married, which we did. We then applied for a partner visa while in Oz, which was granted. Five years on, she is now she is an Aussie citizen.

Be aware that partner visas are only a good choice if you intend to both live in Oz. Too much time out and Aussie permanent residence lapses. She won't qualify for citizenship either unless she lives there as a PR.

Yes, marriage was a big commitment, and the visa was one of the reasons why we did it. That said, we so far don't regret getting married, and are both back in Thailand now, as Aussie citizens with the right to go back there any time we please.

[Time Traveller]

I was in a similar situation, with not much supporting evidence for a de facto visa, even though we'd been living in Thailand as de facto for a few years.

The prospective marriage visa was the way we went, as it requires less supporting evidence. It all worked out. I went to Oz first, sponsored her for the visa. Supporting evidence was mainly lots of holiday photos and evidence that we had travelled together going back a few years. Sure she had to wait here until it was approved, but having just migrated to Oz I was busy over there starting a new job.

Once the visa is granted, you have 9 months to get married, which we did. We then applied for a partner visa while in Oz, which was granted. Five years on, she is now she is an Aussie citizen.

Be aware that partner visas are only a good choice if you intend to both live in Oz. Too much time out and Aussie permanent residence lapses. She won't qualify for citizenship either unless she lives there as a PR.

Yes, marriage was a big commitment, and the visa was one of the reasons why we did it. That said, we so far don't regret getting married, and are both back in Thailand now, as Aussie citizens with the right to go back there any time we please.

And very conenient that they put up the cost of these visas by 50% starting today.

Edited January 1, 2015 by Time Traveller

[dbrenn]

I was in a similar situation, with not much supporting evidence for a de facto visa, even though we'd been living in Thailand as de facto for a few years.

The prospective marriage visa was the way we went, as it requires less supporting evidence. It all worked out. I went to Oz first, sponsored her for the visa. Supporting evidence was mainly lots of holiday photos and evidence that we had travelled together going back a few years. Sure she had to wait here until it was approved, but having just migrated to Oz I was busy over there starting a new job.

Once the visa is granted, you have 9 months to get married, which we did. We then applied for a partner visa while in Oz, which was granted. Five years on, she is now she is an Aussie citizen.

Be aware that partner visas are only a good choice if you intend to both live in Oz. Too much time out and Aussie permanent residence lapses. She won't qualify for citizenship either unless she lives there as a PR.

Yes, marriage was a big commitment, and the visa was one of the reasons why we did it. That said, we so far don't regret getting married, and are both back in Thailand now, as Aussie citizens with the right to go back there any time we please.

And very conenient that they put up the cost of these visas by 50% starting today.

Right - importing your Thai sweetheart to Oz is an expensive exercise. The costs for visas is going up all the time, and the paperwork is onerous. The only way to avoid all this, I guess, is to find an Aussie girlfriend. For me, it was worth it.

That said, a friend of mine who lives in Malaysia is moving back to Oz and taking his two dogs with him.

The cost? AU$7,000.

Dogs don't need visas, but at least we don't have to put our women into quarantine.

[Time Traveller]

And very conenient that they put up the cost of these visas by 50% starting today.

Right - importing your Thai sweetheart to Oz is an expensive exercise. The costs for visas is going up all the time, and the paperwork is onerous. The only way to avoid all this, I guess, is to find an Aussie girlfriend. For me, it was worth it.

That said, a friend of mine who lives in Malaysia is moving back to Oz and taking his two dogs with him.

The cost? AU$7,000.

Dogs don't need visas, but at least we don't have to put our women into quarantine.

$7000 is approx. what the new cost will be. I don't know how they can justify it, I guess welfare costs a lot.

Edited January 1, 2015 by Time Traveller

[dbrenn]

And very conenient that they put up the cost of these visas by 50% starting today.

Right - importing your Thai sweetheart to Oz is an expensive exercise. The costs for visas is going up all the time, and the paperwork is onerous. The only way to avoid all this, I guess, is to find an Aussie girlfriend. For me, it was worth it.

That said, a friend of mine who lives in Malaysia is moving back to Oz and taking his two dogs with him.

The cost? AU$7,000.

Dogs don't need visas, but at least we don't have to put our women into quarantine.

$7000 is approx. what the new cost will be. I don't know how they can justify it, I guess welfare costs a lot.

An offshore prospective marriage, followed by an onshore partner visa would cost $5,775 at today's rates. That's certainly a lot more than I paid in 2009, almost double if I remember correctly. Prices are here:

http://www.immi.gov.au/Help/Pages/fees-charges/visa.aspx

They don't even try to justify it - they know that you can't shop around and that you'll pay anything for love.

Migrants on partner visas aren't eligible for most welfare payments until they have resided in Oz for two years, but they do get Medicare, as well as 510 hours of free English lessons under the AMEP scheme. After paying $5,775 for the visa, that would work out at $11.32 per hour.

Edited January 1, 2015 by dbrenn

[David48]

I was in a similar situation, with not much supporting evidence for a de facto visa, even though we'd been living in Thailand as de facto for a few years.

The prospective marriage visa was the way we went, as it requires less supporting evidence. It all worked out. I went to Oz first, sponsored her for the visa. Supporting evidence was mainly lots of holiday photos and evidence that we had travelled together going back a few years. Sure she had to wait here until it was approved, but having just migrated to Oz I was busy over there starting a new job.

Once the visa is granted, you have 9 months to get married, which we did. We then applied for a partner visa while in Oz, which was granted. Five years on, she is now she is an Aussie citizen.

Be aware that partner visas are only a good choice if you intend to both live in Oz. Too much time out and Aussie permanent residence lapses. She won't qualify for citizenship either unless she lives there as a PR.

Yes, marriage was a big commitment, and the visa was one of the reasons why we did it. That said, we so far don't regret getting married, and are both back in Thailand now, as Aussie citizens with the right to go back there any time we please.

But, there within lies the Achilles Heel to that particular route.

The current processing time for a

Prospective Marriage

(subclass 300)

Priority Group 1

is 12 months

https://www.immi.gov.au/about/charters/client-services-charter/visas/5.0.htm

http://www.thailand.embassy.gov.au/bkok/DIAC_Processing_time.html

Thailand being a High risk Country.

.

[dbrenn]

I was in a similar situation, with not much supporting evidence for a de facto visa, even though we'd been living in Thailand as de facto for a few years.

The prospective marriage visa was the way we went, as it requires less supporting evidence. It all worked out. I went to Oz first, sponsored her for the visa. Supporting evidence was mainly lots of holiday photos and evidence that we had travelled together going back a few years. Sure she had to wait here until it was approved, but having just migrated to Oz I was busy over there starting a new job.

Once the visa is granted, you have 9 months to get married, which we did. We then applied for a partner visa while in Oz, which was granted. Five years on, she is now she is an Aussie citizen.

Be aware that partner visas are only a good choice if you intend to both live in Oz. Too much time out and Aussie permanent residence lapses. She won't qualify for citizenship either unless she lives there as a PR.

Yes, marriage was a big commitment, and the visa was one of the reasons why we did it. That said, we so far don't regret getting married, and are both back in Thailand now, as Aussie citizens with the right to go back there any time we please.

But, there within lies the Achilles Heel to that particular route.

The current processing time for a

Prospective Marriage

(subclass 300)

Priority Group 1

is 12 months

https://www.immi.gov.au/about/charters/client-services-charter/visas/5.0.htm

http://www.thailand.embassy.gov.au/bkok/DIAC_Processing_time.html

Thailand being a High risk Country.

.

Our prospective marriage visa took around 4 months, but that was in 2009. That said, I'm pretty sure that the processing times were at that time up to 12 months, similar to what they are now. I'd resigned myself to the fact that we would be separated for a year before she got her visa, but she got it much sooner.

Other than live in Thailand, I'm not sure what other options the OP has, given that they have refused another tourist visa for his TGF.

I was in a similar situation - I had lived with my TGF for a few years here in Thailand, but hadn't bothered with joint bank accounts, rental leases and all the other supporting evidence listed in the requirements for a de facto visa. When I moved to Oz, pretty much all we had were holiday photos, corresponding passport stamps, tickets and boarding passes that we had collected while travelling together. Risking laying out all that cash on a de facto visa, with so little supporting evidence (and the likelihood of refusal and loss of my application fee), made the prospective marriage visa look by far the most attractive option, and the most likely one to succeed, in that its requirements better fitted what we could prove about our circumstances. And succeed it did.

Edited January 1, 2015 by dbrenn

[Time Traveller]

An offshore prospective marriage, followed by an onshore partner visa would cost $5,775 at today's rates. That's certainly a lot more than I paid in 2009, almost double if I remember correctly. Prices are here:

http://www.immi.gov.au/Help/Pages/fees-charges/visa.aspx

They don't even try to justify it - they know that you can't shop around and that you'll pay anything for love.

I guess they are about to jack up the passport fees as well, since it's not something most people can shop around for.

Edited January 2, 2015 by Time Traveller

[dbrenn]

An offshore prospective marriage, followed by an onshore partner visa would cost $5,775 at today's rates. That's certainly a lot more than I paid in 2009, almost double if I remember correctly. Prices are here:

http://www.immi.gov.au/Help/Pages/fees-charges/visa.aspx

They don't even try to justify it - they know that you can't shop around and that you'll pay anything for love.

I guess they are about to jack up the passport fees as well, since it's not something most people can shop around for.

The Oz government have been recently complaining about how much consular assistance is costing, and how it is being used too frequently, so that wouldn't surprise me at all.