Australia Partner Visa (Defacto) lack of evidence

[bureaucrazy]

Hey there,

I’ve been a long time lurker on Thai visa, but I’ve never needed to ask questions before because every question I’ve had thus far has been answered either here or elsewhere online. Anyhow, I’m now faced with a delicate situation with the dept of immigration, and I’m feeling pressured because a slight mis-step might have irreversible consequences.

Basically it appears that the officer reviewing my partner’s application is unwilling to accept the evidence we’ve provided as adequate evidence of a de-facto relationship.

The back story…

• my partner applied for a partner visa (defacto) in April

• it was three years since we’d first moved in together when we submitted the application

• We first met when I was in Thailand for 7 months, and lived together for 5 months or so at that time.

• By the time we submitted the application she’d been in Autralia for 1 year spread across 2 years on four tourist visas, and she’s been here once more for three months since we applied.

• We’ve lived together for more than half the time since we first met, any other separation has been temporary separation due to visa restrictions and my job keeping me here in Australia.

Also.. this is vaguely relevant below so I’ll mention here, my partner was diagnosed with HIV about a year after I met her. There’s obvious connotations for our visa application, but I’m well acquainted with the process and having reviewed the matter, and sought qualified advice, the chances of us obtaining a health waiver are very good. In any case, this health concern is not today’s problem.

So based on this I was initially unsure whether a de facto application would work for us because we simply don’t have a single document with both our names on it which is more than 12 months old. I spent loads of time investigating the situation online, and I even sought paid advice from a specialist in immigration law.

The basic situation which I’m sure many of you know is that there’s broadly four categories of evidence the immigration officer needs to satisfy in order for us to meet the de facto criteria, one of which being co-mingled financial affairs. The DIAC provides examples of documentation which would substantiate our financial arrangements, notably utilities in joint names, a tenancy agreement in joint names, a joint bank account, et cetera.

The advice I received was that a key part of any application is an explanation of why particular evidence may not exist or be available. So you might say, any specific application is likely to be weak in one or more areas, but it’s important to explain why that evidence may not be available. I considered the evidence I could provide, and decided that whilst we were light on the financial stuff, it would be difficult for any reasonable person faced with the evidence we provided, to conclude that we’re not in a defacto relationship.

On those grounds we proceeded with the de facto application and provided the following evidence regarding our finances:

• Evidence of support, when I’d transferred money to my gf’s account. Although, after the first year or so we just started taking cash with us every time we went to thailand because the exchange rate was so much better. So for example on a day where she has an itinerary departing Australia, I’ve withdrawn $5k in cash from my bank account. In the last few years the only times I’ve withdrawn > $200 cash has been on dates where the gf has been departing Australia, and there’s a significant cash withdrawal on every day she has departed.

• About a year before we submitted the application, I asked my property manager if I could include my partner on a new lease. This property manager was a recalcitrant so and so and refused to add her to the lease on the grounds that “because she’s not an australian resident she’s not allowed to sign a lease”.. preposterous I know, but there’s no point arguing with an imbecile of that magnitude. In any case, I included emails back and forth regarding this subject in our application. So we don’t have a lease agreement from that time, but you can see I tried to submit a joint application.

• I sought legal advice regarding a pre nuptual agreement approximately two years before we submitted the application. I didn’t actually obtain a pre nup at that time. I did get a letter from the lawyer, confirming that I sought legal advice regarding a pre nup for my partner.

• I sought financial advice regarding life insurance and income protection insurance at about the same time as the pre nup. My partner’s HIV status effects my income protection insurance. I got a letter from the financial adviser confirming that I sought financial advice in the context of a de facto relationship.

• I sought medical advice regarding carrying on a relationship with a person living with HIV, about two years before submitting the application. I got a letter from my doctor confirming that I’d discussed this.

• I got a boat load of stat decs from friends and family.. 9 in total. These are from people who have visited our house and confirm that our living arrangements are comparable to that of any de facto couple.

• We did try to open a joint bank account a while back, but my partner had arrived in Australia more than 6 weeks prior to our visiting the bank, so was required to get birth certificates et cetera. At that time we decided to wait until her next visit, but that occurred in April, after we submitted the application.

• I included extensive notes, and a stat dec from myself, explaining why we didn’t have a joint bank account.

There’s a bunch of other evidence we submitted, which I consider very strong, but it’s less relevant to the co-mingled financial stuff than the above.

The basic problem is that since we met, we’ve just been carrying on a relationship which has developed along a natural course. In hindsight I should’ve looked into the partner visa thing in advance, but at the time we were just taking it day by day as people do. It would’ve been a 30 minute job to go open a joint bank account, but there was never any practical reason to do so, so we didn’t.

Anyhow yesterday my partner got a call from an immigration officer who said that based on the evidence we submitted our application would be denied as we do not meet the criteria for a defacto relationship. The officer also had some stuff to say about my partner’s HIV status which was IMO inappropriate, unnecessary, and quite unprofessional, but that’s another story.

My partner told the officer to call me, but the officer said they couldn’t as it was my partner’s visa application not mine. We submitted the relevant 956 & 956a forms with the application, which I had thought authorised me to represent my partner to immigration?

Anyhow, I’ve received the official notification from dept of immigration informing my partner of the additional information required. The letter basically says they need a tenancy agreement or utility bill or bank statement in joint names, from more than 12 months prior to our submitting the application.

I sent an email requesting a call back.. I want to confirm that they’ve considered all the evidence I’ve provided, and also just discuss with the officer reviewing our application.

There’s some stuff I can submit.. but none of it strictly fits the criteria in question:

• in January (three months prior to our application) I moved into a house owned by my parents. I drew up a tenancy agreement in joint names. I never submitted this with our application because, well, my partner wasn’t in Australia when I moved in, so she either had to date her signature in March, or date it in January and say the agreement was posted to Thailand for her to sign at that time. Both options seemed a little thin, and I knew it was less than the 12 month requirement, so at the time, rightly or wrongly, I decided not to include it in our application.

• In April (the month after we submitted our application) we opened a joint bank account. My weekly salary is deposited into that account and we pay our bills et cetera from there.

• This is really thin… but about 2 years before we submitted our application I renewed my fishing license and got one for my partner also. Yesterday I contacted department of fisheries and got them to email me receipts, issued to each of us on the same day showing the same address, but they’re two separate receipts.

• In the last few months there’s been a bunch of other financial stuff posted to my partner, at our residential address. This stuff is not in joint names.

I’ll send all of the above.

So… if you’ve bothered to read thus far, you’re a champion and I really do appreciate you taking the time. Having written all this out I realise I don’t really have any specific questions. Maybe I’m just venting, and I guess a little emotional support wouldn’t hurt, but I’d really like to hear how this compares to your own experience.

Is my officer just being a recalcitrant stick in the mud? Is this the ordinary course? Do you think the officer is likely to approve? Was I completely wrong about the likelihood of meeting the defacto criteria?

[Larz2013]

Hey! I know the pain of the visa, we are still waiting 15 months later... Minor police convictions in Thailand 25 years ago apparently is a pain in the arse!

Unfortunately they are pretty much <deleted>, and love some good rules & paperwork.

You need to live together for 12months, before you apply. Or be married, which deletes that 12 month requirement.

You've already paid though, so id be submitting the joint bank account, all the receipts, and stat decs from both of you stating you have no signed lease contracts, but live together in thailand at *this address* when you visit and at *this address in australia* when shes here. Get those signed by JPs.

Goodluck! Youve got a massive wait and headache in front of you.

[bureaucrazy]

Hey thanks, it sure is a fairly unpleasant process.

Regarding the stat decs we've already done exactly that with the original application. I'm going to send in the recent bank statements and lease agreements.

I'm anxious to speak to the immigration officer reviewing our application, I think that will give me a better idea of what I'm up against.

Thanks for taking the time to reply, and good luck with your application.

[bureaucrazy]

I just found this MRT case which is really similar to our own situation. Basically loads of evidence in stat decs et cetera covering the whole 12 mth period, but tenancy agreement and bank statements etc for less than that period.

The decision officer found that they weren't in a defacto relationship, but the review tribunal found "overwhelming evidence" of the defacto relationship.

I don't know if this is good news for me or not. I mean it's good to know that the review tribunal would find in our favour, but it demonstrates that a decision officer could make things very difficult for us. I really don't want this to go to the review tribunal.

[Gopro]

https://www.border.gov.au/about/corporate/information/fact-sheets/35relationship

You can always register your relationship in OZ at anytime until up to decision is made.

Check with your local state. In QLD only one needs to reside to register it. Therefore you bypass all need to prove defacto, by which sounds like you have submitted enough. 9 stat decs should be plenty plus your other evidence.

[patwill]

HI Bureaucrazy,

I think they are stuffing you around. My GF's partner visa for aussi was approved last week. (Applied late Oct 2014)

The application was on defacto grounds .

We had no joint bank account or any document with both our names on it for that matter. All I had was the monthly 15-20k

coming out of my bank a/c into hers.

She lived in Aus 12mths out of the last two years. That was it.

Hope they don't stuff you around too much.

Best of Luck

[bureaucrazy]

We had no joint bank account or any document with both our names on it for that matter. All I had was the monthly 15-20k

coming out of my bank a/c into hers.

Thanks so much for posting.. this makes me feel a whole lot better about the situation. I mean I've spent absurd amounts of time looking into this, even before we submitted the application, and then we got such a weird response from the CO, kind of freaked both of us right out. Basically everything I've read anywhere says 'abc' and the CO calls my gf and says 'cde', and refuses to provide any additional information.

I'd already decided I was dealing with a box ticker who was struggling to understand the content of many of the documents we submitted, but in another thread here someone reassured me that someone else would review my CO's work before a decision was made.. so I'm sure we will get through it.

Personal rant: We're both really feeling the pressure. It sounds silly and I know almost all of you have gone through exactly the same thing, so I'm not trying to cry "hard done by" at all.. anyhow, it's such a surreal feeling to hand over all this documentation to someone who's going to somehow decide whether we have a 'proper' relationship. In addition, the outcome of that decision has such a huge impact on the rest of my life. It's just bizarre. /rant

Again.. thanks for posting, glad to hear to you got your visa.. congrats!

[bureaucrazy]

https://www.border.gov.au/about/corporate/information/fact-sheets/35relationship

You can always register your relationship in OZ at anytime until up to decision is made.

Check with your local state. In QLD only one needs to reside to register it. Therefore you bypass all need to prove defacto, by which sounds like you have submitted enough. 9 stat decs should be plenty plus your other evidence.

Good advice.. I had looked into this before, but I think that here in West Aus we're SOL because there's no relationship declaration register here. At this point I realise we should've just gotten married. We live and learn I guess.