Same Sex Marriage and Partner Visas

Same Sex Marriage and Partner Visas 2

The recent legislative passing of the same sex marriage bill through the lower house of Australian Parliament brought with it a significant changes in migration options for Applicants and Sponsors who are in same sex relationships.

This opens opportunities for couples who may have previously been unable to apply due to strict de facto visa requirements. This is a significant shift for the LGBTQI community, and since the change has come into effect December 2017, now same sex partners from off shore outside Australia will be able to apply for partner and other visas on the basis of their marriage.

After same sex marriage was legalised in Australia, the Australian government took steps to expand the category of applicants. For Partner Visas, this means the category of married applicants has expanded to include same sex couples. As a consequence, same sex couples will now be able to use marriage certificates to apply for a Partner Visa.

It’s worth noting this is particularly significant for couples who have faced increased hurdles to apply in Australia.

For those who intend to migrate to Australia and who may not yet have been married in their home country, this opens up the pathway to apply through the Prospective Marriage Visa (subclass 300) which will allow them to enter Australia and within nine months legally marry under Australian Law. If you are into same sex relationship and your partner is unable to make it to Australia on a Visitor Visa, you should consider applying for Prospective Marriage Visa subclass 300 which will allow your partner to enter Australia and free to be married under the Australian Law.

Alternatively, they can now apply for a Partner Visa once the couple is married overseas.

Same sex couples who are already legally married are now able to lodge applications for other category of partner pathways since the new laws came into effect. Since 2017, new laws also extend eligibility of married LGTQI couples to temporary visas such as Temporary Skills Shortage Visa (TSS Visas), the New Zealand Family Visas, and eligible Student Visas. Visa holders are now permitted to bring partners to Australia on the basis of their same sex marriage.

Notwithstanding these changes, every application involving a partner relationship must still satisfy Department of Immigration Border Protection that the relationship is genuine and ongoing regardless of whether they are married or in a de facto relationship. This will involve providing significant evidence that demonstrates the authenticity of the relationship so that the case officer can be satisfied that there is an authentic relationship occurring.

Contact Summit Migration today for an assessment of your prospects under the Partner Visa. We provide professional assistance with same sex marriage visas or any other visa application that allows you to bring a partner to Australia.

IMPORTANT: Changes Pending to the Partner Visa Process

IMPORTANT: Changes Pending to the Partner Visa Process 4

Update: The Department of Home Affairs has since advised that while these changes will be forthcoming, the changes will not be commencing on 10 June 2019. We understand that implementing the changes is on the Department’s agenda but is not yet considered a priority item. You should consider that these new rules may commence at any time over the next 12 months. You should consider that the Department is liable to provide minimal or no notice before commencing the changes.

Following legislation introduced in late 2018, substantial changes pending to the Partner Visa process will result in stricter requirements and a longer pathway to be able to apply and acquire a Visa both for onshore as well as offshore applicants.

The New Changes

On 10 December 2018, the Migration Amendment (Family Violence and Other Measures) Act 2018 received the Royal Assent. This amends the Migration Act 1958 (the Migration Act) to introduce a sponsorship framework for the sponsored family visa program.

This change will:

  • Separate sponsorship assessment from the visa application process for family
    sponsored visas.
  • Require the approval of persons as family sponsors before any relevant visa
    applications are made.
  • Impose statutory obligations on persons who are or were approved as family sponsors.
  • Provide for sanctions if such obligations are not satisfied.
  • Facilitate the sharing of personal information between a range of parties associated with the program.
  • Improve the management of family violence in the delivery of the program by
    allowing the refusal of a sponsorship application; and cancellation and / or barring of a family sponsor where inappropriate use of the program or serious offences are detected – especially those involving family violence.

In practical terms, the changes under the Partner visa program will require an additional application process for the sponsoring party to be approved (“the sponsorship application”) prior to the visa applicant becoming eligible to apply for their partner visa (“the visa application”).

It is unclear the length of time that the sponsorship application will take to be processed. It is quite possible this process will exceed three months.

When These Changes Come Into Effect

The commencement day has not yet been determined. Accordingly, we do not know the date the changes come into effect.

Until then, lodged Partner visa applications are to be assessed under the current partner visa application requirements.

You should consider that these new rules may commence at any time.

How This May Affect Your Application

It is anticipated that this new process will lengthen the overall application time for both onshore and offshore visa applications by adding the additional process of thee sponsorship application.

If you have the opportunity to apply prior to the changes, this may mean that the overall processing time of your Partner visa is reduced.

This will substantively affect you, however, in the following cases:

  • If you are currently progressing a pathway where your partner is seeking to arrive in Australia on a Visitor Visa (Subclass 600), eVisitor (Subclass 651) or Electronic Travel Authority (Subclass 601) prior to applying for a Partner visa (Subclass 820) onshore.
  • If you are progressing a pathway onshore with a substantive visa that is due to expire within the next four to six months and have not yet applied for a Partner Visa.

If the sponsorship application should turn out to be lengthy process, this may pose concerns for the period of stay for potential visa applicants under their current or proposed visa.

Notwithstanding, we note that a second Visitor Visa (Subclass 600) can generally be granted up to a cumulative period of 12 months stay in Australia.

If you are in a position to expedite your visa application, we suggest it may be in your interests to do so.

If applying offshore, these changes will result in longer waits.

How to navigate the changes

  • If you are in the process of lodging your partner visa or planning to lodge in near future, then lodge your partner visa before the changes take effect
  • If you are not sure about your plans or situation – contact us and we can provide you with clear guidance

RECENT LEGISLATIVE CHANGES

Following new legislation introduced On 8th April 2019, the Governor-General  proclaimed that Schedule 1 of the Migration Amendment (Family Violence and Other Measures) Act 2018, would commence on 17 April 2019.

Once effected, Schedule 1 of this Act amends the Migration Act to insert the new subsections related to the sponsored family visas and approval of family sponsors.

While initially it was understood that these changes will cause the new partner visa regime to commence, the Department has since clarified that the 17 April 2019 changes will not apply to the Partner Visa program. Accordingly, while the Partner visa changes will commence at the latest on 10 June 2019, they are not commencing on 17 April 2019.

HOW WE CAN HELP WITH YOUR PARTNER VISA APPLICATION

As the Partner Visa program is a dynamic and fluid visa pathway it is strongly recommended that you utilise the services of a migration agent

Our Registered Migration Agents can advise you on demonstrating to the Department of Home Affairs that you meet the “genuine and ongoing” criteria of the partner visa. Our Registered Migration Agents can also help you navigate the visa changes. Please contact Summit Migration today for further information and advice.