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INTRODUCTION

Partners of Australian citizens or permanent residents, whether spouse or de facto (both same sex and opposite) may consider several visa options for immigration to Australia.

The most commonly encountered Partner and De Facto visa options are the Subclass 820 (Onshore - Temporary) and Subclass 309 (Offshore - Temporary) Partner visa applications.

The permanent equivalents of the above visas are the Subclass 801 (Onshore – Permanent) and Subclass 100 (Offshore – Permanent) that you might be eligible to obtain after your initial qualifying period has ceased. Currently, the qualifying period is two years after your initial temporary visa application was been made.

The Partner and De Facto visa criterion apply equally to heterosexual and same sex relationships.

To apply for a Subclass 820 (Partner) visa you must be married to or in a de facto relationship with an:

  • Australian citizen
  • Permanent resident
  • Eligible New Zealand Citizen

You must also be in Australia at the time your visa application is made and decided. You must be in a genuine and ongoing relationship with your partner and if you do not live together, any separation must be explained to the Australian government.

You still may be able to obtain permanent residence before the initial two year qualifying period is over if you can demonstrate:

  • Your relationship has broken down and there is a child as a result of the relationship.
  • Your partner has passed away and you can demonstrate that your relationship would have continued if your partner had lived. You will also need to demonstrate that you have close business, cultural or personal ties to Australia.
  • At the time you apply, you have been in a relationship with your partner for at least three years (without children) or two years (with children).

DE FACTO APPLICANTS

Your de facto relationship will need to have existed for at least twelve months before you apply for your Partner visa which is known as the cohabitation requirement.

Time spent dating will not help meet the legal definition a De Facto relationship.

You can be granted a visa without having been in a de facto relationship for 12 months if:

  • you can demonstrate compelling and compassionate circumstances, such as having dependent children
  • your partner has been granted a permanent humanitarian visa and your de facto relationship existed before it was granted. Your relationship would need to have been disclosed to the authorities before your humanitarian visa was granted
  • your de facto relationship has been registered in Australia.

PROSPECTIVE MARRIAGE VISA

The Prospective Marriage visa (subclass 300) is a nine month visa for persons seeking entry to Australia:

  • To marry (after their first entry), the Australian citizen, permanent resident or eligible New Zealand citizen who is their prospective spouse, and
  • Have the intention to remain together permanently.

To apply for a Subclass 300 Prospective Marriage visa you must:

  • intend to marry and live as husband or wife with your prospective spouse
  • be sponsored by your prospective spouse
  • know your prospective spouse and have met in person (arranged marriages where the couple have not met are not acceptable)
  • be the opposite sex to your prospective spouse
  • meet age, health and character requirements.

The requirement to have met your prospective spouse in person, as adults, applies even if:

  • it is an arranged marriage
  • you and your prospective spouse met as children and the marriage was arranged before you turned 18 years of age
  • you met your partner on the internet.

CASE STUDY - PARTNER VISA APPROVED ON DE FACTO GROUNDS FOR A COUPLE WHO HAVE NEVER LIVED TOGETHER

Our client first met his partner on an internet forum where they shared a common interest and conversed in various discussion threads about their shared admiration.

Inevitably, our client enjoyed his soon to be partners company and the couple spoke every day, going out of his way to ensure he was online very early in the morning when he lived in Saudi Arabia at a time that was convenient to his Australia based sponsor.

Our client had travelled to Singapore several times and thought of inviting his new friend to meet there as he wanted to see if he could take their relationship a step further if they met in person. The Australian sponsor was reluctant to travel to Saudi Arabia as a tourist and they had a common friend in Singapore that they could both visit.

It was during this time in Singapore the couple had fallen in love where they both agreed to continue their relationship even though they lived in different countries. The couple continued to speak daily using any technology available such as email, video ‘Skype’ calls, text messages and phone calls.

Throughout the course of their relationship, the couple frequently travelled to various countries to meet and spend time together.

Our client together with his sponsor are originally from the Philippines, however living together in in this country was not going to be a legal option as our client was still technically married to a former partner. Our client has been separated from his wife for 14 years, however divorce is illegal in the Philippines which made the couples separation more complicated than necessary.

Living in Saudi Arabia would have proven to be challenging for the couple, as our client feared being caught illegally being with a woman who is not a relative which meant they could not live together.

Furthermore, the Australian sponsor is an educated woman with an excellent career and continues to advance herself on a professional level.

These professional opportunities do not exist in Saudi Arabia as women are provided with very limited career choices. Women receive very little respect and are vulnerable to abuse with authorities providing limited support and assistance to female victims.

We provided an extensive submission on how our clients met the definition of a de facto couple in accordance with Australian immigration legislation and policy and more specifically, s5CB(2)(c) of the Migration Act which requires the partners not to be living separately and apart on a permanent basis.

Without going into the legalities, the compelling and compassionate circumstances associated with this case are as divided between two issues, the illegality of living together and women’s rights in Saudi Arabia.

As is very well known, the primary source of law in Saudi Arabia is the Islamic Sharia which is derived from the Quaran. The legal system of Saudi Arabia is exceptional in the world of Islam, in that Muslim countries that retain or adopt Sharia usually determine which parts of the Sharia are enforceable and codify (and thereby modernize) them. In Saudi Arabia, the state regards uncodified Sharia in its entirety as the law of the land and does not interfere with it.  The system of Sharia implemented in Saudi Arabia is said to be the closest system in the modern world to the form of Sharia adopted at the advent of Islam.

In 2010, the U.S. State Department stated that in Saudi Arabia “freedom of religion is neither recognized nor protected under the law and is severely restricted in practice” and that “government policies continued to place severe restrictions on religious freedom”. No faith other than Islam is permitted to be practised, although there are nearly a million Christians, nearly all foreign workers, in Saudi Arabia. There are no churches or other non-Muslim houses of worship permitted in the country. Even private prayer services are forbidden in practice and the Saudi religious police reportedly regularly search the homes of Christians. Foreign workers must observe Ramadan and are not allowed to celebrate Christmas or Easter. Compensation in court cases discriminates against non-Muslims: once fault is determined, a Muslim receives all of the amount of compensation determined, a Jew or Christian half, and all others a sixteenth.

Under the religion of Islam, living in a De Facto relationship is considered adultery which is a crime under the Islamic faith.

Our clients would have risked their lives if they ever tried cohabiting in Saudi Arabia.

Women’s rights in Saudi Arabia are unfortunately defined by Islamic and tribal customs. All women, regardless of age, are required to have a male guardian. The World Economic Forum 2009 ranked Saudi Arabia 130th out of 134 countries for gender parity. It was the only country to score a zero in the category of political empowerment. The report also noted that Saudi Arabia is one of the few Middle Eastern countries to improve from 2008, with small gains in economic opportunity.

Only twenty-one percent of Saudi women are in the workforce and make up 16.5% of the overall workforce. Even if the sponsor was to somehow get away with living in an illegal de facto relationship in Saudi Arabia, she would find herself in a very likely situation where she would have been unemployed.

Our submissions were accepted by the Department and we confirm our clients Partner visa has since been approved. The visa applicant is now living with his Australian sponsor as a permanent resident of Australia.


CASE STUDY - PARTNER VISA APPROVED FOR SAME SEX COUPLE WHO HAVE NEVER LIVED TOGETHER

Our client, a Citizen of Saudi Arabia, was in a same sex relationship with an Australian female who was resident in Lebanon at the time of their courtship.

Applying for a Partner visa in this type of scenario is never an easy task. Issues we have to consider, include, but were not limited to, the following:

  • How is our client able to meet the definition of a De Facto Couple in accordance with Australian Immigration Legislation and policy and more specifically, s5CB(2)(c) of the Migration Act which requires the partners not to be living separately and apart on a permanent basis.
  • In addition to the above, we conducted a rigorous assessment of our clients circumstances and compiled a detailed submission that helped address Regulation 1.09(A) of the Migration Regulations. More specifically, the financial aspects of our clients relationship, the nature of the household, social aspects of the relationship and the nature of our clients commitment to her sponsor.
  • We relied heavily on DIBP policy that allowed for the 12 month living together requirement to be waived if compelling and compassionate circumstances for granting the visa could be demonstrated. DIBP policy states the threshold for compelling and compassionate can be reached if the applicant’s relationship was illegal in the country where they both resided.
  • The compelling and compassionate circumstances associated with this case are as divided between two issues, the illegality of living together and women’s rights in Saudi Arabia.
  • The primary source of law in Saudi Arabia is the Islamic Sharia which is derived from the Quaran. The legal system of Saudi Arabia is exceptional in the world of Islam, in that Muslim countries that retain or adopt Sharia usually determine which parts of the Sharia are enforceable and codify them. In Saudi Arabia, the state regards uncodified Sharia in its entirety as the law of the land and does not interfere with it. The system of Sharia implemented in Saudi Arabia is said to be the closest system in the modern world to the form of Sharia adopted at the advent of Islam.
  • In 2010, the US State Department stated that in Saudi Arabia, ‘freedom of religion is neither recognized nor protected under the law and is severely restricted in practice’ and that ‘government policies continued to place severe restrictions on religious freedom’. No faith other than Islam is permitted to be practised, although there are nearly a million Christians, nearly all are foreign workers in Saudi Arabia. There are no churches or other non-Muslim houses of worship permitted in the country. Even private prayer services are forbidden in practice and the Saudi religious police reportedly regularly search the homes of Christians. Foreign workers must observe Ramadan and are not allowed to celebrate Christmas or Easter. Compensation in court cases discriminates against non-Muslims: once fault is determined, a Muslim receives all of the amount of compensation determined, a Jew or Christian half, and all others a sixteenth.
  • Under the religion of Islam, particularly in Saudi Arabia, living in a same sex and de facto relationship is considered adultery which is a crime according to the strict interpretation of the Islamic faith. The Quran expressly and unfairly dictates what must happen to those who are considered adulterers and fornicators.

Applying for a Partner visa under these circumstances is never an easy task and the help of a highly experienced Migration Agent will increase your chances of success.

We are pleased to confirm that our client's Partner visa has since been approved. 

© Copyright 2019 CNA Immigration Pty Ltd 

Migration Agent Registration Number 0851787

        

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