Australian Migration Law: Spouse and De Facto Relationship, Partner Visa Application Process, Bridging Visa

This article discusses Australian Migration Law related to spouse and de facto relationship, partner visa application process, and bridging visa. It explains the requirements for partner visa and bridging visa, and the benefits of temporary partner visa. The article also covers the criteria for the grant of the Partner visa and the limitations concerning work or study.

AUSTRALIAN MIGRATION LAW
Name
Course
Date
Name 1

Australian Migration Law
Question 1
A spouse is a lawfully life partner in a marriage. When the legislation definition is
missing, the law presumes a spouse as a lawfully married spouse. Based on the Marriage Act
1958, a person can be called a spouse of another when the two are in a legally valid marriage.
Additionally, an individual can also be a spouse of the other when he or she is married overseas
and the marriage is recognized by the Australian government.1 The two must have a mutual
commitment to share their lives as spouses to the segregation of other people. They must be
treating one another in a genuine and enduring manner.2 They must also be living together and at
a distance on an everlasting basis.
On the other hand, a de facto relationship is whereby two people who were formerly in a
relationship, are of the opposite or same sex, and had a relation as couple staying together on a
genuine domestic basis. This definition is evident in the case Moby & Schulter (2010) in which
the Family Court used s. 4AA(2) of the Family Law Act 1975 to identify a de facto relationship.
According s.5CB of the Migration Act 1958, any relationship where two people are legally
married or are in family relation cannot be referred as a de facto relationship. The association
must have a mutual vow to share life to the segregation of other people.3 The relation should be
genuine and ongoing; they should be living together and at a distance permanently. Based on
these requirements, it is clear that George and May qualifies as a de facto couple.
Question 2
1 Robertson, S 2014, ‘Time and Temporary Migration: The Case of Temporary Graduate Workers and Working
Holiday Makers in Australia’, Journal of Ethnic & Migration Studies, vol. 40, no. 12, pp. 1915–1933.
2 Homeaffairs.gov.au. (n.d.). Bridging visa A - BVA - (subclass 010). [online] Available at:
https://www.homeaffairs.gov.au/trav/visa-1/010- [Accessed 3 Oct. 2018].
3 Robertson, S 2014, ‘Time and Temporary Migration: The Case of Temporary Graduate Workers and Working
Holiday Makers in Australia’, Journal of Ethnic & Migration Studies, vol. 40, no. 12, pp. 1915–1933.
Name 2

May can apply for a Partner Visa in Australia without returning to China. It is because
the application of s.48 that used to invalid onshore application has now been corrected by the
insertion of Partner visa Registration 2.12, making Partner visa exempted from Section 48
restrictions. However, for her to lodge for a partner visa application, she must have a substantive
visa for such purposes and length of stay. For her to apply for Partner Visa, she must be in a
relationship with a Permanent Resident, a citizen of Australia, or a qualified citizen of New
Zealand. She must also be either married, stayed together in a de facto correlation for twelve
months, or have been cohabitating in a genuine relationship and their relationship is registered
with the Australian Government.
Moreover, she will be required to genuinely provide evidence of commitment and
continuing relationship besides the relationship registered certificate. Therefore, with the visa
that she has, she may be able to apply for partner visa Subclass 820, since her substantive visa
does not have any of the No Further Stay numbers such as 8503, 8534, 8535 and 8540 conditions
on it. Therefore, for her to be able to apply for Partner Visa, she must apply for temporary visa
concurrently with the permanent visa using a single fee.4 After obtaining her temporary partner
visa, she will be able to obtain a permanent partner visa in the next two years’ time being that the
two visas are applied at the same time with a single fee.
Question 3
She can apply for temporary partner visa, which is one of the stage processes for attaining
the permanent partner visa. When you are granted a temporary visa, you become eligible to be
evaluated for the permanent Partner visa for at least two years after the application of the
4 Hatton, TJ & Williamson, JG 1998, The Age of Mass Migration : Causes and Economic Impact,
Oxford University Press, New York, viewed 3 October 2018
Name 3

permanent visa has been lodged. Temporary partner visa is a subclass 802 visa that allows one to
stay in Australia while waiting for a decision on his or her permanent Partner visa to be prepared.
Other benefits of the temporary Partner visa include:
 living and working in Australia
 studying even without government support
 travelling outside Australia as one wishes,
 accessing free English tuition of up to 510 hours by the Adult Migrant English Program
and,
 enrolling in Medicare under the national health scheme in Australia
Moreover, because May has been in a long relationship with George before lodging any
application, she might be granted the permanent subclass 801 visa immediately after receiving
the temporary subclass 820 visa. The procedure for applying for a temporary partner visa
includes completing the Form 80, medical assessment, police checks, and payment for the visa.
Form 80 is a character assessment document which does not appear in the application form of the
partner visa, but is needed at the final process.5 One needs to be in Australia during the
application of the visa and when the visa is being granted. The partner visa subclass 802 enables
one to enter, stay, work, and access Medicare until when the subclass 801 visa will be granted.6
Other than that, a subclass 801 allows one to stay permanently, work, study, get payment of
some social security, and to be able to apply for Australian citizenship. It also enables one to
sponsor an eligible relative for permanent residence and to travel into and out of Australia for
5 Sheikh, H, Pilati, M, Tilly, C & Sperotti, F 2015, How Global Migration Changes the Workforce Diversity
Equation, Cambridge Scholars Publishing, Newcastle upon Tyne, viewed 3 October 2018,
6 Nott, G 2018, ‘Visa changes “hurt us directly” says Atlassian’s Cannon-Brookes: Atlassian co-founder Mike
Cannon-Brookes today slammed the government’s changes to the skilled migration visa system, saying the move
had “hurt us directly”’, CIO (13284045), p. 1, viewed 3 October 2018
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five years. However, the visa applicant must meet health, age, and care characteristic
requirements.
Question 4
The criteria required for the grant of the Partner visa, first she needs to get a Bridging
visa associated with George’s visa when she will be waiting for the processing of the Partner visa
that might be subclass 100 or 801.7 To start the process of lodging one need to:
 have an ImmiAccount
 Complete the Form 47SP Application that allows one to migrate to Australia by a partner.
 The sponsor will have to use TRN to submit his or her 40SP Sponsorship Form for a
Partner to be allowed to move to Australia.
 Fill the form
 Pay for the partner visa Application charges
 Review and acknowledge the application by pressing Submit
 Attach all the required documents
If the above criteria result is successful, May will be granted a Temporary Partner visa such as a
Subclass 820 for a person who is within Australia or a Subclass 309 for any person applying
from overseas.8 She will be in her Temporary visa until that day she will be grated a Permanent
Partner visa, which may be subclass 100 or 801.9 Moreover, with the temporary partner visa, she
will be able to apply for a Permanent Partner visa in two years’ time. However, for this to
happen, May must first have to be in a de facto relationship with George.
7 Homeaffairs.gov.au. (n.d.). Definitions. [online] Available at: https://www.homeaffairs.gov.au/trav/brin/defi
8 Nott, G 2018, ‘Visa changes “hurt us directly” says Atlassian’s Cannon-Brookes: Atlassian co-founder Mike
Cannon-Brookes today slammed the government’s changes to the skilled migration visa system, saying the move
had “hurt us directly”’, CIO (13284045), p. 1, viewed 3 October 2018
9 Faggian, A, Corcoran, J & Rowe, F 2016, ‘Evaluating the effects of Australian policy changes on human capital:
the role of a graduate visa scheme’, Environment & Planning C: Government & Policy, vol. 34, no. 1, pp. 151–170,
viewed 3 October 2018.
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On the other hand, relationship requirements include genuineness of the relationship. The
applicants are needed to give evidence that they are in long-term relation with the sponsor. It is
done by having a document that shows that they have been sharing life and are committed to
each other based on the following assessment:
 shared household such as lease agreements
 relationship financial aspect, for example, money transfer, joint purchases, and bank
accounts
 social aspects for example, the statements from family, friends, travel records, and
photos
 how serious the commitment is for example, the history of the relationship and their
future plans
Question 5
If May’s application for the Partner visa is not finalized by the time her study visa expires,
she is allowed to apply for a Bridging visa A (BVA). Abridging visa allows an individual to stay
in Australia while the temporary partner visa is being processed. It is given automatically to a
person who has applied for a partner visa. However, BVA does not allow one to travel in and
outside Australia.10 With BVA, one can work, study with no State support, enroll in Medicare.
The reason why she must apply for Bridging visa is because she cannot stay in Australia without
a visa. Staying in Australia without a visa is unlawful for non-citizen.
If she is still holding her current student temporary visa when her BVA is granted, she must
still comply with the conditions that are in her substantive visa. On the other hand, when her
10 Robertson, S 2014, ‘Time and Temporary Migration: The Case of Temporary Graduate Workers and Working
Holiday Makers in Australia’, Journal of Ethnic & Migration Studies, vol. 40, no. 12, pp. 1915–1933.
Name 6

substantive expires, she will have to follow the conditions set in her new BVA.11 If BVA she has
applied for does not let her work in Australia nor has conditions on the work, the law still allows
her to apply for another BVA that can let her work. However, for one to be considered for a
BVA that lets her work, she will have to show that she has a financial problem. Consequently, a
BVA only lets one to temporarily stay in Australia and usually ends when one leaves Australia.12
However, if May wishes to travel overseas, she can do so by applying for a Bridging visa B
(BVB) before she travels. A BVB visa enables her to travel overseas and get back to Australia
when her application for a new functional visa is still under processing. For her to get BVB, she
must be a holder of a BVA or BVB, and have had applied for a new substantive visa.13 The cost
of BVB is from AUD 145 and the length stay also varies.
On the other hand, if she does not have a substantive visa that can enable her to travel or if
her substantive visa might expire before she returns to Australia, she can travel on her current
substantive visa. Although, if her substantive visa might ends while she is in China or in another
country besides Australia and does not have a BVB, she will have to apply for and be given a
substantive visa before she can get back to Australia.14 However, there is no guarantee in getting
one while one is outside Australia.
Question 6
The probability of May getting a partner visa is high; however, it can only happen after
getting into a de facto relationship with George. It because the law only allow those who are
married, Australian citizen, in a de facto relationship, qualified citizen of New Zealand or a
11 Workpermit.com. (2018). Australian Spouse Visa. [online] Available at:
http://workpermit.com/immigration/australia/australian-spouse-visa [Accessed 3 Oct. 2018].
12 Homeaffairs.gov.au. (n.d.). Bridging visa A - BVA - (subclass 010). [online] Available at:
https://www.homeaffairs.gov.au/trav/visa-1/010- [Accessed 3 Oct. 2018].
13 Homeaffairs.gov.au. (n.d.). Definitions. [online] Available at: https://www.homeaffairs.gov.au/trav/brin/defi
14 Homeaffairs.gov.au. (n.d.). Bridging visa A - BVA - (subclass 010). [online] Available at:
https://www.homeaffairs.gov.au/trav/visa-1/010- [Accessed 3 Oct. 2018].
Name 7

Permanent resident of Australia during the application time to obtain Partner visa.15 After being
in a de facto relationship, she can lodge a Partner visa while in Australia and get a Bridging visa
related to it. However, there could be some limitations concerning work or study. The limitation
will depend on her current temporary study visa; that is, if her current visa has the rights to study
or work. But being that she holds a study visa, it would not be a milestone for her. Being that her
study visa is expiring in the next two months, acquiring a Bridging visa related to George’s visa
will still allow her to still have all the rights she had under the study visa. Moreover, during the
period she will be waiting for her Permanent partner visa, she will not be able to get fee
assistance such as Newstart or Higher Education Contribution Scheme (HECS) or other
government funding.
Bibliography
A. Articles/Books/Reports
15 Gribble, C & Blackmore, J 2012, ‘Re-positioning Australia’s international education in global knowledge
economies: implications of shifts in skilled migration policies for universities’, Journal of Higher Education Policy
& Management, vol. 34, no. 4, pp. 341–354, viewed 3 October 2018
Name 8

Faggian, A, Corcoran, J & Rowe, F 2016, ‘Evaluating the effects of Australian policy changes on
human capital: the role of a graduate visa scheme’, Environment & Planning C: Government &
Policy, vol. 34, no. 1, pp. 151–170.
Hatton, TJ & Williamson, JG 1998, The Age of Mass Migration : Causes and Economic Impact,
Oxford University Press, New York.
Homeaffairs.gov.au. (n.d.). Bridging visa A - BVA - (subclass 010). [online] Available at:
https://www.homeaffairs.gov.au/trav/visa-1/010-
Homeaffairs.gov.au. (n.d.). Definitions. [online] Available at:
https://www.homeaffairs.gov.au/trav/brin/defi
Nott, G 2018, ‘Visa changes “hurt us directly” says Atlassian’s Cannon-Brookes: Atlassian co-
founder Mike Cannon-Brookes today slammed the government’s changes to the skilled
migration visa system, saying the move had “hurt us directly”’, CIO (13284045), p. 1,
Robertson, S 2014, ‘Time and Temporary Migration: The Case of Temporary Graduate Workers
and Working Holiday Makers in Australia’, Journal of Ethnic & Migration Studies, vol. 40, no.
12, pp. 1915–1933.
Sheikh, H, Pilati, M, Tilly, C & Sperotti, F 2015, How Global Migration Changes the Workforce
Diversity Equation, Cambridge Scholars Publishing, Newcastle upon Tyne.
Workpermit.com. (2018). Australian Spouse Visa. [online] Available at:
http://workpermit.com/immigration/australia/australian-spouse-visa
B. Case
Moby & Schulter (2010)
C. Legislation
Marriage Act 1958
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Migration Regulations 1994
Family Law Act 1975
Criminal Code Act 1995
Marriage Act 1961
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