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Immigration

04/04/10 | Return | Print |

Recent changes to immigration rules for partners

By Dr Rory Hudson

Recent changes to rules regarding the immigration of partners have in some respects made it easier, in other respects more difficult.

Until now, section 48 of the Migration Act has provided that a person in Australia who has had an application refused, or a visa cancelled, and does not hold a substantive visa (a substantive visa being any visa other than a bridging visa) cannot make another visa application except in very limited circumstances. These circumstances, however, have now been considerably expanded by allowing such a person to apply for a partner visa provided that it was not a partner visa that was refused, and that any cancellation was not on character grounds. This avoids the cumbersome situation where people in these circumstances would apply to the Minister for compassionate consideration, or would have to go offshore to be sponsored back again.

Furthermore, de facto couples who have registered their relationship under laws which apply in Victoria, Tasmania and the ACT no longer need to prove that they have lived together as a couple for 12 months. In other states, however, there are at present no comparable laws, so the 12 months rule still applies.

Under new legislation, a person may now also be granted a permanent partner visa directly (without going through the 2-year temporary visa stage first) if he or she establishes that the relationship has continued for at least 3 years (previously the period was 5 years). This provision also applies if the couple have a child together.

On the other hand, sponsorship of a partner will now be more cumbersome if the sponsorship includes the partner’s underage child from a previous relationship. (The same restriction also applies to people sponsoring children directly under Child visas). Such sponsors now require an Australian Federal Police clearance to verify that they have not been convicted of a sex offence against a child, or other offence which might endanger the safety of the child. If the AFP report is negative or is not provided, the sponsorship can be refused – in which case it appears that neither the partner nor the child will be granted a visa. However, the Minister retains a discretion to approve the sponsorship if five years have passed since the conviction.

I think it is fair to say that all of the above are sensible developments which will be welcomed by the general public.

Dr Rory Hudson, a registered migration agent (MARN 9900954) is Director of Immigration and Refugee Specialists Pty Ltd. He can be contacted on (03) 9670 7222.