Applying for a partner visa and the impact of the 20/21 Federal Budget

A partner visa is one of the most important type of visas because it affects a substantial number of families. This visa allows a foreigner to stay in Australia so that he or she can be united with his or her Australian partner. Following the Australian federal budget 2020-21, several changes are made to the partner visa scheme with significant implications. In this article, we will take a brief look at such changes and their impact on partner visas.

Requirements

The visa applicant must be ‘sponsored’ by his or her partner who is an Australian citizen, Australian permanent resident, or a New Zealand citizen who satisfies specific criteria. The visa applicant’s partner must first apply to and be approved by the immigration authority to be a sponsor.

The visa applicant’s partner must be visa applicant’s ‘spouse’ or ‘de facto partner’. In either case, they must be committed to each other in a shared life to the exclusion of others. Moreover, they must live together or not be separated permanently. For a de facto partnership to be recognised, it must have lasted for at least 12 months.

To be granted a partner visa, the partnership must be proved as genuine and continuing. All circumstances of the partnership must be considered by the immigration authority, including four essential aspects, namely financial aspect, nature of household, social aspect and nature of commitment to each other.

Application process

There are permanent and temporary partner visas: a permanent visa grants permanent residency in Australia, while a temporary partner visa allows the applicant to stay in Australia before the permanent visa is granted. The applicant must apply for a temporary visa and a permanent visa at the same time. Assessment of the permanent visa application will normally start two years after its lodgment.

Partner visas can be applied for either in Australia (on-shore) or outside Australia (off-shore). An interesting fact is that an offshore applicant can apply for a prospective marriage visa to come to Australia to marry his or her Australian partner. After the marriage, the applicant can apply for onshore partner visas.

CHANGES FOLLOWING FEDERAL BUDGET 2020-21

The Australian Federal Budget 2020-21 has brought significant changes to the partner visa scheme including:

  1. more visa places allocated to partner visas;
  2. priority to regional residents;
  3. mandatory character check for sponsors; and
  4. English requirements.
More visa places

In the 2020-21 visa program year (starting from 1 July 2020), the Australian Government has planned to grant 72,300 partner visas, compared to 39,799 in the 2019-20 program year.

Priority to regional sponsors

Partner visa applications will be given priority in the application process if the sponsor lives in ‘designated regional area’ such as Perth, Adelaide, the Gold Coast and Canberra. In other words, applicants with a regional sponsor might obtain permanent residency faster.

Sponsor’s character check and obligations

The sponsor applicant must provide the immigration authority with a police check. Moreover, the sponsor applicant must consent to the immigration authority disclosing his or her criminal records to the visa applicant.

The sponsor is obliged to provide the visa applicant and his or her children with accommodation and financial assistance 2 years after the temporary partner visa is granted, even when the permanent visa is granted before the 2 years expiry. The visa may be cancelled if the sponsor fails to perform his or her obligations.

English requirement

Both the partner visa applicant and the sponsor are required to have ‘functional English’ by the time the permanent partner visa is granted. They must at least demonstrate that they have made reasonable efforts to learn English. Such efforts may be demonstrated by, for example completing 500 hours of free English language classes through the Adult Migration English Program.

Conclusion

Applying for a partner visa is a long process and has a handful of requirements. This year, the Australian Government has created more opportunities for partner visa applicants and tightened the requirements for sponsors. At Legal Point Lawyers, we can help you with your application and offer a service that is smooth and efficient.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Case summary: Hua v Minister for Home Affairs [2019] FCAFC 158

Facts:

Van Phat Hua, the Appellant, a Vietnamese national, had an extensive criminal record dating back 30 years including drugs and violent crime offenses for which he was convicted multiple times, including armed robbery, cannabis cultivation, heroin trafficking, arson and assault. On 30 July 2014, he was convicted of arson, reckless conduct endangering life, making threats to kill, recklessly causing injury, intentionally destroying property, theft, and cultivation of cannabis. This resulted ultimately in a 3 and a half-year custodial (jail) sentence.

The Appellant’s temporary visa was subsequently automatically cancelled on 4 January 2016 pursuant to s 501CA of the Migration Act 1958 (Cth) . The Appellant made submissions to the Minister to revoke the mandatory cancellation. Among the documents submitted to the Minister in the course of the Minister’s decision were:

  • a Statutory Declaration submitted by the Appellant concerning his remorse at his actions (This Statutory Declaration was submitted in relation to a further incident for which the Minister invited submissions, where the Appellant got in a fight with another prisoner); and
  • The Appellant’s submissions in relation to the prison incident also included a letter from his assigned prison officer (‘the Leggett Letter’).

The Minister issued a decision not to revoke the mandatory cancellation on grounds that the Appellant’s threat to the community, having regard to all the facts, outweighed the counter- considerations of his ties to the community, the evidence of his wife (whom the Appellant had abused) that he had reformed, the needs of his disabled child, and his own expressions of remorse. Part of the Minister’s reasons mentioned that the Appellant did not make ‘direct expressions of remorse’ to the Minister.

The Appellant attempted to have the failure of the Minister to revoke the mandatory cancellation of his visa judicially reviewed on the grounds that the Minister had not considered the Statutory Declaration and the Leggett Letter, and that this failure to consider that evidence amounted to jurisdictional error.

The primary judge concluded that it was not made out that the Minister had no regard for the Statutory Declaration. The Primary judge also found that even if the Statutory Declaration was overlooked, it was not material. A similar conclusion was reached in respect of the Leggett Letter: the better explanation for the failure of mention was not a failure of consideration, but even if it was, there was no jurisdictional error.

This matter was appealed to the Federal Court of Australia, and further review was sought on the basis that the Primary Judge erred in regarding the Statutory Declaration and the Leggett Letter as not significant in the circumstances of the case.

Held by the Judge:

The failure of the Minister to consider the particular evidence of the Statutory declaration was found to be not material, as the underlying issue was whether the Appellant was remorseful, and even stronger evidence than the statutory declaration, namely the testimony by the Appellant’s wife, was considered, and the remorse was implicitly accepted in the Minister’s reasons. Moreover, the Appellant’s remorse was implicitly granted, and as just one factor in a multi-factor assessment of whether to revoke the visa cancellation, and unlikely to change the Minister’s decision in any event. This was sufficient for the judge to find that the Statutory Declaration was not material. The risk to the Australian Community was an overriding concern in the Minister’s decision, and would have overridden even good evidence of the Applicant’s remorse.

The Minister was held to have had due regard to the Leggett Letter implicitly, as part of the evidence for the Appellant’s behaviour in custody.

The appeal was dismissed with costs.

An important lesson to draw from these proceedings is that visa cancellations, especially for weighty considerations like threat to the Australian public, are difficult to appeal on technical points, because any point significant enough to invite judicial review as jurisdictional error must be capable of producing another result that what was actually decided.

Law Applied

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 at 263, [45].- helped to find that ‘A breach is material to a decision only if compliance could realistically have resulted in a different decision.’

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Immigration Limit At 10-year Low; New Regional Pathways To Permanent Residency

The Australian Department of Home Affairs have released the latest figures and reports on permanent residency visas granted under Australia’s skilled migration programme. All potential applicants to Australia should pay heed to the trends we summarise below:

The Australian immigration System

The Australian immigration system divides applicants into various ‘streams’- the ‘Skill’ Stream focuses on applicants with particular skills, but there is also the ‘Family’ stream and the ‘Child’ stream, which are more relevant to family immigration. The ‘Skill’ stream is the largest stream, accounting for 68.4 percent of the total Migration Programme outcome.

Most Frequently Granted Countries

People from India, China and the United Kingdom made up the top three nationalities granted permanent residency visas in the skill stream between 2017 and 2018. In this period, a total of 162,417 permanent residency visas were granted.

Most Frequently Granted Professions

The professions most frequently granted permanent residency visas in the period between 2017-2018 are as follows, in order of most numerous to least.

  • Accountants
  • Software Engineer
  • Registered Nurses
  • Developer Programmer
  • Cook

Immigration is getting tougher

However, the immigration environment in general is getting tougher, as new statistics for the 2018-2019 period reveal fewer permanent residencies were granted in the 2018-2019 period under the Permanent Migration Program (160,323 visas out of a ceiling of 190,000) than at any time in the last 10 years. In turn, migration for the 2019-2020 period has been capped at 160,000 places. Going forward permanent residency visa applications in the skill stream seem like they will be more more competitive than ever.

The Australian Government’s regional focus

Migration to regional Australia remains a priority for the Australian government. According to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, David Coleman,

“We’re also dedicating 23,000 places for regional skilled migrants and have announced two new regional visas to help fill some of the tens of thousands of job vacancies in regional Australia.

“We’re directing migration to those smaller cities and regional areas that are crying out for more people and those regional economies that simply cannot fill jobs with local workers.”

The Australian Government’s focus on regional migration is emphasised by the introduction of new visas focused on regional migration.

The Skilled Employer-Sponsored Regional (Provisional) visa will be for skilled migrants sponsored by an a regional employer while the Skilled Work Regional (Provisional) visa will cover migrants nominated by a State or Territory government or sponsored by an eligible family member.

The visas will be for a period of five years, with the possibility to apply for Permanent Residency only after living in the region for three years.

Applicants for permanent residency in Australia would do well to consider whether regional migration is right for them, if they want to improve their chances of a successful immigration application.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.