Defacto spouse- short on 12 months - special circumstances?
Hi, this is my first post on here,
We are looking at applying for defacto spouse visa, My partner is Australian and we have been together since Jan 2007. He starts a new job in Sept and we need to be in Oz at the end of Aug.
Our problems is that although we have been together for 15months, and was staying at mine, eating, sleeping etc from about april, We did not make us living together 'official' until september 2007 as i was awaiting the financial side of my divorce to be settled, and beleived that his living with me could have caused problems with my ex, ( we moved him in when we learnt the ex was living with someone himself) I got my devree absoluet in March 2007, however the finacila side has never been settled ( i have since given up on getting any settlement as the legal fees were too high)
Sorry to waffle........ so my dilema is has anyone had any experience of a visa being granted without evidence to fulfill the 12 month co-habitation rule?
we have evidence that he paid for weekly shopping ( and he even kept the recipts that may show my personal items being paid for), we also have a stat dec from his mum saying that in june when she visited it was clear he was not living in his flat as no food etc and that she beleived us to be co-habiting from early on.
I also have a letter from my car insurance confirming he was on my car insurance as a named driver since April 2007, joint bank account from aug07,
My other question is - does anyone know.... if they deam this not to be enough evidence will they just wait until we fulfil the 12 months and then grant the visa? in which case will they allow me to travel to OZ in August for a couple of months on my current ETA and then come back to the uk and hopefully get the visa granted then.
Really sorry to go on and on ....... PLEASE DONT SUGGEST A Prospective marriage visa - I just got divorced and am now happy with de-facto for the time being!!!!
Hi Have you thought about coming to oz and applying onshore - if you came on a 3month vistor visa - if im reading this right you need to be living together for 12month before you can apply - so that was sep 2007 - so if you came to oz in aug 2008 and applied for your visa say in oct 2008 that would then mean you had been living together for over one year if the defacto is the same as the spouse visa onshore (onec you apply here in oz you cannot leave oz with permission from immi - untill the temp visa is granted) confused i am - sure we can sort something out theres lots of peeps on the site that are in the know - oh and welcome to pomsinoz gizmo
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In your shoes, I would do exactly as Gizmo sugests. The "de facto" visa is the same one as Gizmo's spouse visa - ie the onshore subclass 820/801 vis, which is here:
Once you are in Oz, make enquiries of an intelligent onshore Migration Agent. It is hopeless trying to ask the DIAC Helpdesk anything because they usually provide unreliable, inaccurate answers.
Quote:
My other question is - does anyone know.... if they deam this not to be enough evidence will they just wait until we fulfil the 12 months and then grant the visa? in which case will they allow me to travel to OZ in August for a couple of months on my current ETA and then come back to the uk and hopefully get the visa granted then.
No they wouldn't. They would probably refuse the visa instead because it is a time-of-application requirement that whatever the prattle about the relationship is must be met.
However, what you could do in that situation would be to apply for a 6 month subclass 676 tourist visa. You can apply for this onshore, though they would impose Condition 8503 on it. Please see here:
Condition 8503 is a pain but not a huge one. It merely involves a bit of travelling to Bali, Singapore or Auckland, whereever is nearest. You go there for a couple of weeks whilst an application for an offshore De facto visa is lodged on your behalf by a Registered Migration Agent in Oz.
Whilst you are offshore, you make an on-line application for a 6-month stay on Oz on a subclass 676 tourist visa, as above. Back you go to Oz using that. When they are ready to grant the Spouse visa, you go offshore again for about 5 days.
This was my origional plan, but having been on other forums i was told that it was really Risky to go in on a ETA and then apply on shore, and that i could be refused entry at imigration etc etc. And why don't we just go on a prospective marriage visa etc etc etc.... So i decided to go down this route, which i was trying to find out if there was a chance, but again the on-shore application seems more reliable for me now. I still have a ETA valid until Nov 08 and they way i understand it is that as soon as i apply i get a bridging visa, which allows me to stay until they make a decision, but will not allow me to work - not a problem as i don't intend on working anyway, my partner is going to support me and i plan on Studying in Feb 09.
Will the fact that i already have police checks and stat decs done that are dated now effect my application as this will show that I intended on staying on when i arrived on an ETA, and is it wise t get medicals done here or wait until i am in Perth?
Does anyone know how long the application takes in Perth?
Thanks for all your help, everyone seems more friendlier on this forum than others i have been on where they are all Negative unless you have a perfectly simple case that they are able to quote info from the various immi websites.
Technically the Jonahs are right, in as much as Policy disapproves of people using tourist visas for the purposes of anything other than tourism. They are obviously not intended to be a way of permitting people to emigrate to Australia via the back door, as it were, by-passing all the proper procedures and checks.
But every lawyer has a dog called Loophole....
The only requirement for applying for an onshore visa is that the applicant must be physically in Australia, and s/he must be in possession of a visa that is not lumbered with Condition 8503, because Condition 8503 would prevent an onshore application for a de facto/Spouse visa from being a valid application. Condition 8503 cannot be imposed on a subclass 976 ETA, however, which is the visa you currently hold.
Nor do you travel to Australia with the intention of remaining indefinitely. You do exactly what your tourist visa permits. DH has to get back to Oz to start work, so you go with him the better to mop his fevered brow whilst doing a spot of sightseeing etc. You have every intention of returning to the UK at the end of 3 months. Back in the UK you intend to launch an application for a subclass 309/100 Spouse/de facto visa, and to make a simultaneous application for a 6-12 month stay in Australia on a subclass 676 long stay tourist visa. You intend to travel to Oz using that and then to nip to Bali, Auckland or wherever in order for the subclass 309 visa to be granted.
Once in Oz, you seek the help of an intelligent onshore migration agent, who studies your documents and clocks that you are not lumbered with Condition 8503. He asks whether you like the cost and hassle of long haul travel. You are astonished by this question and wonder why he has asked it? He explains that the situation is such that you could make an onshore application for the de facto visa, and couple it with an application for a Bridging Visa A (the submission of the onshore application is also an automatic application for the Bridging Visa.)
Armed with this new information, you undergo a change of heart & mind which is so dramatic that its like has not been seen since the Transformation of Saul on the Road to Damascus. DIAC know perfectly well that they cannot prove exactly when you formed a new intention which differs from your original plans, and you could not possibly have obtained the impression that this is even possible from reading the DIAC website because that does not exactly point the way to the loopholes in the legislation. The onshore migration agent put the new idea into your head,or the staff at the local DIAC office did so (which is even better because in practice their advice would be identical to that of the onshore migration agent.)
Meds can be done in Australia (and it is cheaper to get them done there.) UK Police checks can be applied for by airmail and sent to you by airmail. Do not take the kitchen sink in your luggage because even the doziest DIAC airport official would feel inspired to question you if you do that.
I often observe commentators straying into the realms of morality when offering "legal advice" about this scenario to someone like you. I am a lawyer. Nobody has ever given me any training in matters of morality. Moral issues are best left to the Men of the Clothes because morality is their territory, not mine. Doubtless their various textbooks contain plenty of instructions on the subject but legal textbooks steer firmly clear of such matters.
The Court's attitude is that Parliament writes the legislation and Parliament can change the legislation if it so wishes. However, if the words ain't in the legislation then the Court will not import them. Parliament is content that Condition 8503 cannot be imposed on 90-day ETAs it would seem. So be it. Parliament wrote Section 976 of the Migration Regulations so presumably Parliament is content with how the thing works.
Now I really must go and take Loophole for a walk, my dear.....
Gill, Thanks so much for all this advice - all seems really simple, seems as we have a Christening, a 30th and 60th in OH'd family all in Sept would be feasable to be going on an exteneded holiday!
Your advice made us both smile.
Thanks again -- on shore application certainly looks like the way forward.
