why are partner visa applications refused appeal review

 

Today, we’re going to talk about the common reasons why an Australian partner visa may be refused.

Depending on where the applicant is when they lodge the application, there may be review rights.

If the applicant is offshore and applies for a partner visa, and it is refused, the applicant does not have the right to a review.

If the applicant is onshore when they apply for the partner visa, and it is refused, the applicant may lodge an appeal to have the decision reviewed.

A review is a different process in the Administrative Appeals Tribunal. “The AAT can review some, but not all, decisions about visas made under the Migration Act 1958 by the Department of Home Affairs, the Minister for Home Affairs or the Minister for Immigration.” You can read more about the AAT here.

12-month rule

If you’re not married and you want to apply for a partner visa to Australia, you may apply as a ‘de facto partner’. This applies to same-sex couples who want to lodge a partner visa application as well.

However, in order to be considered a ‘de facto’ couple, you must demonstrate that you have lived together under roof and not separately for 12 months.

The definition of ‘de facto’ requires a stronger commitment than girlfriend/boyfriend and it seems that 12 months is considered the length of time that the Department will accept. The Department has determined that 12 months is the minimum length of time that you should be committed to each other to be considered in an exclusive relationship.

Obviously this is not grounded in reality because who are they to say whether your love for each other is committed or not? If you love your partner, you love your partner! But for migration purposes, 12 months is the rule.

Many couples have difficulty proving this because sometimes it’s not practical to be on the same lease or even not legally allowed to be on a same lease.  It also gets complicated when you may be renting a room in your friend’s house and there’s nothing official to prove that you two have lived together for 12 months.

That’s OK, the book goes into detail on how you can collect this evidence. It even provides case studies and scenarios and how to approach it.

The other popular method and not exactly a secret anymore is the registration of relationships.

Registering relationships is for all intents and purposes like a marriage. It has the same rights and benefits but without the religious ceremony. It also was for same-sex couples to formalise their relationships during the time that Australian law defined marriage as a union between man and woman. Thankfully, that has changed now and same-sex couples can apply as de-factos (with or without registering a relationship) or as married couples.

But if you live in State or Territory in Australia where the registration of relationship is not available or is not recognised for migration purposes, then you’re going to be hard pressed to prove 12 months of living together. Once again, there are ways around this and I go through the different scenarios in detail in the book.

So there you have it readers, a number of partner visa applications have been refused based on the lack of evidence that the applicant and the sponsor have lived together for 12 months.

Marriage certificate

Married couples have the benefit of not having to prove that they’ve lived together for 12 months or more. However, that doesn’t mean that you can live separately or not together at all. It just means you don’t have to prove this part.

Providing only a marriage certificate thinking that that is evidence enough of a long standing and exclusive relationship is just not adequate.

Put yourself in the shoes of the case officer. You’re applying for a $7,160 partner visa that will allow you to permanently live in Australia and eventually one day become a citizen. This partner visa application process takes 2 years. And you think that submitting one piece of paper to demonstrate your relationship is sufficient?

It reminds me of this one time that I was hiring for my company and I received several, not just one, but several, applications that didn’t even have a CV. All they had done were the words ‘I want job’.

Don’t make the mistake of thinking that just because you’re married and have a marriage certificate to prove it that you are exempt from having to prove that you have a genuine relationship.

So if defacto isn’t safe and marriages are not sacred, which one should you choose to apply under? I’m only saying this so that people don’t misunderstand that they have to get married. Whether you’re in a defacto relationship or in a marriage, the partner visa application process is largely the same.

When partner visa applications are refused for this reason, they generally are refused because of the visa application as a whole was insufficient or incomplete. This was just one of the problems that I saw in the partner visa application when they came to me to ask why their partner visa application was refused.

Genuine relationship – 4 aspects of a de-facto or spouse relationship

This is the main criteria for a partner visa to Australia: you have to have a genuine relationship with your Australian sponsor. The way that the Department assesses a genuine relationship is defined by 4 criteria known as the 4 aspects of the relationship.

The 4 aspects of the relationship that you have to prove are:

  1. Financial aspects
  2. Social aspects
  3. Nature of the household
  4. Nature of the commitment

The legislation itself provides very limited examples of each and they’re generally very straight forward types of evidence such as bank statements for financial aspects and photos for social aspects. However, the legislation is not meant to be exhaustive in their examples – it’s just a guide.

And because it’s just a guide, many couples fall short on providing enough evidence. The 4 aspects of the relationship are non-negotiable. You cannot cherry pick which ones to show evidence of and which ones you don’t. In fact, many partner visa applications have been refused because not all 4 aspects have been proven. Some applications only dress 1 out of the 4 aspect – the easiest one to document i.e. financial.

That is where most partner visa applications fail – they’re not including ALL the evidence and the evidence that they do upload is very weak.

The Australian Partner Visa Guide goes through each aspect in detail, describes what needs to be shown for each and provides you with instructions on obtaining the proof and evidence that has worked for successful partner visa applications. The worksheets and checklists are all included with the book to help you get prepared and submit the best partner visa application possible.

Incomplete partner visa applications

This one is a frustrating problem given that the processing time is extremely long. It is also a very widely misunderstood issue.

Many of you eager beavers want to lodge a partner visa application before your Australian visa expires. That is good practice and you should definitely do that. However, if your partner visa application is not ready on the day that you lodge, you risk getting it refused.

The case officer makes a decision on the partner visa application based on the evidence that you submitted on the day that you lodged the application. If all the criteria are not met on the date of application, nothing you upload subsequently during those 24 months of processing, will correct that.

So many applicants start drafting their partner visa applications in ImmiAccount thinking that they have 24 months to continually upload information. This is a very common misconception and has cost a lot of people money; including the ones who use migration agents! When I say it’s a common misconception I also mean migration agents make this mistake. Their well intentions in helping people get their applications in early will cost the applicants their visa application fees.

Another scenario I see often is applicants who don’t meet the 12 month rule yet but need to apply for a partner visa before their current visa expires. They lodge an application where they have only lived with their Australian sponsor for 6 months, hoping that they can make up the rest of the time with the long processing time. When they finally reach 12 months of living together, they go back into their applications in ImmiAccount and provide updated information. I have also seen this being advised by migration agents as a ‘tactic’ to get around the 12 month rule.

To be clear, you cannot do that because the legislation is very clear that in order to be granted a partner visa, you must meet all the criteria at the time that you lodged your partner visa application.

There are more reasons on why you would submit an incomplete application and you can read about it here in my other post.

No substantive visa and no compelling reasons

This reason applies to onshore partner visa applications i.e. visa applications that are lodged while the applicant is in Australia. Usually this reason means that at the time that the applicant applied for the Australian partner visa, they did not have a valid visa to be in Australia. This could be because their visas had expired, they were on the wrong type of visa or for any reason really. The AAT decisions have shown that it can range from being a mistake in calculating dates of expiry to a wilful attempt to mislead the Australian government.

By making the partner visa a visa that can only be applied for online, the Department is adding an additional check to ensure that applicants who do not have a substantive visa do not apply. This saves them the work and saves you the money.

When you apply online now, your passport is cross-referenced in their system called VEVO to make sure that you have a valid visa to be in Australia. If you do not have a valid visa, then you cannot apply online. In the book, I go through these scenarios with screenshots and provide possible solutions and workarounds.

But back in the day, unscrupulous migration agents who knew that applicants didn’t have a chance would submit paper applications in order to bypass the online check. This way, the migration agent still gets their fee and the applicant would still have applied for a partner visa. Unfortunately, because the applicant didn’t have a substantive visa i.e. a valid visa at the time that they lodged their onshore partner visa application, the application was, predictably denied.

A few cases have gone to the AAT and some have won and some have lost. The majority of cases that go to the AAT under this reason is because the applicant had overstayed their visa. You can read more about one such case here.

Submitting a partner visa application with a migration agent

partner visas without migration agent success

Statistics don’t lie.

The Department has released statistics on partner visa applications that are lodged with and without a migration agent.

You can have a deeper dive into the numbers here and read more about it on the post.

Essentially, partner visa applications lodged with or by a migration agent results in twice as likely to be refused.

If you look at the Department’s statistics, using a migration agent does not give you any advantages and does not result in a more likely successful outcome. In fact, in some instances, you’re better off applying by yourself than use a migration agent.

That being said, I’m not advocating that you don’t use a migration agent. No, that’s not what I’ve been saying all this time. To be clear, migration agents and immigration lawyers are there to be consulted when your situation is complex or you do not understand what is involved in applying for a partner visa to Australia.

All I’m offering is a guide for the ones who cannot afford the thousands of dollars that migration agents charge on top of the $7,160 partner visa application fee.

The book comes with everything that a migration agent would use to guide you in preparing a partner visa application. Whether you use a migration agent or not, you still need to provide the evidence to prove your relationship. You are the ones in the relationship and you are the ones that have to go collect that evidence. Migration agents are there to advise you along the way and help you submit your partner visa application.

But if you have the same tools, worksheets, templates and knowledge of the process that the migration agent has (all in this one step by step plain English book) then you have to ask your migration agent what they’ll be doing to earn those thousands of dollars.

 

Australian partner visa guides download 2019