Since 2016, the Department of Home Affairs (“DOHA”) has been foreshadowing that they would add an extra stage to the partner visa process – specifically to require the Australian sponsors to be approved before a partner visa can be lodged.

Parliament has not passed the relevant rules, and they are just waiting for royal assent before they take effect.

Put simply, under the new system, an Australian cannot get their foreign wife/husband into Australia, until they get permission from the government!

The most important message to absorb here is this: apply ASAP before you must satisfy the new rules.

What do these changes mean?

More cost:         

It will cost even more to get a visa for your partner.

More delay:      

It will take longer, as there will be an extra stage required, and a need to draft extra submissions where there is any criminal or violence history to explain.

Fewer Australians can bring their foreign partner to Australia:   

Many Australians will be unable to sponsor.

Others will assume that they cannot sponsor, where they can, if they engage an experienced lawyer familiar with domestic violence law, criminal law and international law to put in proper submissions.

Greater skill will be required to ensure the partner visa is successful:     

If you have any history of violence of any criminal record, you will need a lawyer experienced in those areas to ensure the submissions are complete and to give the application the best prospects.

More care should be taken when facing a domestic violence or criminal charge:

If you are facing a domestic violence or criminal charge, you will need to take it even more seriously as the result may prevent you from sponsoring a foreign partner to live with you in Australia.

Many people enter a plea of guilty for cost and convenience reasons.

They will need to resist that approach as it may destroy any ability to sponsor a foreign partner into Australia EVER.

What should you do if you love a foreigner but have not yet applied for a visa?

Seek advice as soon as possible from a migration lawyer with Tribunal experience in character matters.

Apply as soon as possible – try to lodge before the new changes come into effect.

If you have any history, then ensure you are represented by a lawyer with experience in domestic violence law, criminal law, and potentially international law.

If you are facing an application for domestic violence, or facing any criminal charges, then make sure your lawyer is also experienced in migration law, or that your criminal lawyer liaise with your migration lawyer through the process and do not take the easy way out by making a plea as there is too much on the line if you ever fall in love with a non-Australian.

If you are divorcing, try to stop it going “ugly” or vexatious (easier said than done!) especially if you have a foreign love interest, as your ex can take steps to prevent you from sponsoring a foreign partner.

A comparison and commentary on the foreshadowed changes:

Currently:

  • The process involves two stages:
    • the first stage involves applying for a temporary two year visa so the Australian’s partner can live and work in Australia.
    • the second stage involves securing permanent residency by demonstrating that the relationship has lasted two years.
  • Cost (excepting professional costs):
    • A $7160 application fee applies to the 1st
    • No application fees are required for the 2nd
  • Processing time:
    • the current processing times for the partner visa applications are between 18 and 25 months.
    • a decision ready application will generally be processed a lot quicker than the average process time, usually twice as fast (9 to 15 months).
    • a complete and professional prepared application will be processed more quickly – our fastest partner visa in 2018 was processed in under 3 months.

Under the new rules (likely to take effect some time in 2019), the Australian needs to be approved before a partner visa can be lodged:

  • The new system involves a three stage process:
  • The first stage involves satisfying DOHA that the Australian ought be allowed to sponsor their foreign partner into Australia – whoich will increase costs, processing time, and risks.
  • The second stage is identical to the current 1st stage (apply for a 2 year temporary visa).The third stage is identical to the current 2nd stage (seek permanent residency by proving the relationship has lasted two years).
  • Cost: There is an extra stage, and no doubt the DOHA will charge yet another application fee on top of the current $7160.

The application cost is already a major obstacle for Australians wanting to live with their foreign partner in Australia – our Migration Principal spoke with SBS about this https://www.sbs.com.au/yourlanguage/korean/en/article/2018/07/04/australia-ripping-australians-high-partner-visa-fee

During the interview, Mr Bentley pointed out that: “On top of the visa fees, couples face airfares, health checks ($300), police checks ($50-150) and potential migration agent or lawyers’ fees ($3,000-5,000). If a couple of children are involved who also require visas, the cost of merely relocating to Australia can exceed $25,000.”

The increase in prices has meant that more people are preparing applications without a representative or lawyer, leading to increased rejection rates and more work for the immigration department.

Official figures show that roughly 20 percent of applications are refused, and on top of that, thousands of applications are withdrawn each year.

If an application fails, the department doesn’t provide a refund, and if a 2nd attempt is made for a partner visa, the process is much harder (as you need to carefully consider all material lodged on the first one to ensure it is consistent), and there will be a lot of delay before PR is granted.

  • Delays in processing:
  • This extra stage will delay securing permanent residency as the application needs to be processed, which will take even more time.
  • There will also be costs and delays associated with securing police record checks.
  • Where there is any criminal or domestic violence history, there will be a need to secure the relevant legal file relevant to sentencing, and to draft submissions on why any past transgressions should not prevent the Australian partner sponsoring their foreign love, or to put the history into perspective by setting out what the Judge said, or what the extenuating circumstances were at the time.
  • This will delay the process and add a professional cost (in getting the material and drafting the submissions by reference to the DOHA policy guidelines and the applicable law on the character requirements).
  • It will result in even more refusals where people try to lodge applications without a professional lawyer to assist, or where a person engages an agent who is not experienced in domestic violence law, criminal law, and potentially international law. For example, if the Australian’s history is more than 5 or 10 years ago, the submission should quote the Australian “Rehabilitation of Offenders” legislation [Criminal Law (Rehabilitation of Offenders) Act 1986 https://www.legislation.qld.gov.au/view/pdf/2017-07-03/act-1986-020 ; Crimes Act 1914 https://www.legislation.gov.au/Details/C2016C01113 ], and the related Treaty obligations [International Covenant on Civil and Political Rights https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx ] that Australia has signed up to, as these laws provide that some who has a past history should be forgiven (and their records quashed) where more than five or ten years has passed. There are good reasons for these laws – it allows people to move on from past mistakes and to not be permanently shackled to historical events. Without these rehabilitation laws, you remove hope from someone trying to be a good person.

Commentary and why the amendments are controversial:

  • The stated reason for these amendments is to prevent anyone with a domestic violence history, or criminal record from sponsoring.
  • At face value this is a good thing as domestic violence is an unacceptable feature of any society and one that should be stamped out.
  • This is controversial, and critics of the foreshadowed changes argue the practical reality of these changes will be unfair:
    • The process will become even more cost prohibitive. The current process already costs over $7k in government fees alone which is a huge hit on a young couple who have fallen in love and want to marry and raise a family in Australia.
    •  it will prevent many divorced Australians from sponsoring an overseas love interest, noting the majority of divorces that go before the Courts in Australian are accompanied by a DV application also…and whilst many DV applications are genuine, some are lodged for strategic reasons to secure custody for the children. Such strategies will destroy a divorced person’s ability to live with any foreigner in Australia. This is a recognised (and unfortunate) phenomena in child custody disputes.
    • Many Australians regard the right to live with your partner to be a sacred right which should never be interfered with, irrespective of where the love interest comes from, or any regrettable past conduct. Love is love. There should not be laws which prevent an Australian citizen from bringing their foreign-born partner into Australia to live with them and raise a family here etcetera.
    • An Australian with a history may have to live overseas and raise their family overseas, if they cannot get permission to sponsor – Australia will lose talented people and citizens.
    • A vexatious ex could obstruct their ex-partner from sponsoring a new foreign love interest to live with them in Australia by lodging a DVC application. Everyone has heard about the nasty things that go on during contested divorce proceedings.

 

What should you do if you love a foreigner but have not yet applied for a visa?

Seek advice as soon as possible from a migration lawyer with Tribunal experience in character matters.

Apply as soon as possible – try to lodge before the new changes come into effect.

If you have any history, then ensure you are represented by a lawyer with experience in domestic violence law, criminal law, and potentially international law.

If you are facing an application for domestic violence, or facing any criminal charges, then make sure your lawyer is also experienced in migration law, or that your criminal lawyer liaise with your migration lawyer through the process and do not take the easy way out by making a plea as there is too much on the line if you ever fall in love with a non-Australian.

If you are divorcing, try to stop it going “ugly” or vexatious (easier said than done!) especially if you have a foreign love interest, as your ex can take steps to prevent you from sponsoring a foreign partner.