Can my Thai girlfriend get a partner visa to Australia if she is still married?

This is an interesting question that has been asked a few times by Australian men who have met ladies in Thailand who are still married.

In many cases it is where Thai women have married a farang (foreigner) and that relationship has long since ceased, but although permanently separated they are nonetheless still legally married. Perhaps her husband has long since returned to his native homeland, but they have never legally divorced, and haven’t heard from each other in years.

Firstly Australia does not currently recognise polygamous marriages. This is where there are two concurrent legal marriages. Therefore she would have to be legally divorced from her husband if you wanted to apply for a partner visa based on marriage.

She would also not be eligible to apply for an Australian prospective marriage visa (Australian fiancé visa) as one of the primary conditions of this visa is that it is a requirement that the applicant and sponsor have no impediment to marrying. Once a fiancé visa is granted, then the applicant has nine months from date of grant to travel to and remain in Australia. During this time both the applicant and sponsor must marry. After the marriage has taken place she would then apply for an onshore partner visa based on legal marriage.

The partner visa process is two stages. Firstly she would be granted temporary Australian permanent residency followed by permanent Australian residency if after two years the relationship was still continuing. However, given that she is still legally married, then this would be seen as an impediment and the fiancé visa would be refused from the outset.

If you were however able to prove that you are in a genuine and continuing de-facto relationship with your Thai girlfriend, then this itself would not be regarded as an impediment to lodging a partner visa based on de-facto relationship. However it is important to note that with any partner visa application it is essential that you can evidence that your relationship with your partner, whether legally married or de-facto is mutually exclusive, that is, it is a genuine and continuing relationship to the exclusion of all others.

This may prove to be very challenging and require the submission of substantial supporting documentation. The point is however that being in a legally recognised marriage with another person is not in itself an impediment to lodging a partner visa application based on de-facto relationship.

 

What is the visa application charge?

What are the costs involved for my Thai partner to apply for an Australian permanent visa?

For any Australian visa, temporary or permanent, you must pay the correct visa application charge when you lodge the application.

What is the visa application charge?

When lodging an Australian partner visa application you should first check on the Department of Immigration and Citizenship (DIAC) website what the correct visa application charge is.

If you do not pay the correct visa application charge at the date of partner visa application, then the application will be invalid at it will not be assessed. The Migration Regulations are very strict on this.

If the visa application charge is not made then the application will not be legally valid. Many people have submitted invalid applications simply because they failed to check the current visa application charge.

Generally the visa application charges are adjusted on the 1st of July each year. If paying in Thailand for an offshore partner or fiancé visa. Check what the amount payable is in Thai Baht, and the manner in which it must be paid. DIAC changes the deemed exchange rate between the Australian Dollar and the Thai Baht regularly, so it is important to check not only the current visa application charge, but the amount payable in Thai Baht.

Even though a partner visa application is two stage process, that is the grant of the temporary partner visa followed by the permanent partner visa usually two years later, only the one visa application charge is payable when you lodge the first temporary partner visa application.

There are other costs that you need to take into consideration when applying for a partner visa. All applicants must undertake a health examination that can also include radiological examinations and in some cases specialist medical tests. These are all costs that must be met by the applicant and are not included in the visa application charge. Especially when there are secondary applicants this can amount to thousands of dollars.

Other costs to take in consideration are any police character checks they may be required to satisfy the character requirements  and the costs of having supporting documents translated if they are in a language other than English.

 

Before you lodge a partner visa application

Before you lodge a partner visa application

You should be absolutely certain that no circumstances exist that prevents you from making a valid visa application, and secondly if there are any circumstances that would prevent the visa from being granted in the first place.

Lodging an invalid application or one that simply fails to meet the application criteria can be a very costly and time consuming mistake.

If you are in Australia and you are contemplating lodging a partner visa application you may not be eligible to do so for a number of reasons.

Some of the more common reasons include:

  • not holding a substantive visa,
  • or holding a substantive visa with a no further stay condition attached to it.

Remember…

People in Australia on a sponsored family visitor visa are also unable to apply for a partner visa whilst in Australia.

Your partner visa application could fail if…

If you owe money to the Australian Government and you have not made any arrangements to repay the debt, then this can prevent you from being granted a partner visa, both onshore and offshore.

It has also been know that an intending partner visa applicant who has previously been in Australia on temporary works visas and who has outstanding debts owed to the Australian Taxation Office who have attempted to apply for a partner visa (in relation to their relationship with an Australian citizen or Australian permanent resident) have also had their visa application refused on the grounds that they had an outstanding debt to the Australian Government.

Anyone in this situation should first make arrangement to repay the debt and of course documentary evidence of this would certainly need to be submitted with the partner visa application.

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Same-sex relationships (de-facto visa)

Australian partner migration allows for the grant of a visa to permit legally married partners who are of the opposite sex and de-facto partners of Australian citizens, Australian permanent residents, or eligible New Zealand citizens to travel to and remain in Australia permanently.

What is a de-facto relationship?

For Australian migration purposes a de-facto relationship also includes a same-sex relationship.

Therefore if you are in a same-sex relationship with your partner who must be an Australian citizen, Australian permanent resident, or eligible New Zealand citizen, then providing you meet all of the criteria necessary for the grant of a partner visa you will be able to migrate to Australia under the family migration stream.

Same sex partners can migrate to Australia

When an applicant is granted a partner visa, they are first granted a temporary visa partner visa. Generally after a qualifying period of time, usually 2 years from the date of grant of the temporary visa, the applicant will be granted full Australian permanent residency.

Partner visas are often referred to as a two-stage visa process

The period in between the grant of the temporary and permanent partner’s visa is so that the Department of Immigration and Citizenship (DIAC) can be satisfied that the relationship is still genuine and continuing before granting full Australian permanent residency.

If the relationship ceases in between the grant of the temporary and permanent partner visa, then the applicant has a legal obligation under the Migration Act to notify DIAC of their change in circumstances. If they fail to do so and their permanent partner visa is later granted, it can later be cancelled for failing to notify DIAC of their change in circumstances.

Depending upon the circumstances the applicant may still be eligible for the grant of the permanent partner visa notwithstanding that their relationship has ceased with the sponsor. This is usually in circumstances where the sponsor has died, there has been domestic violence perpetrated on the applicant by the sponsor, or the relationship has ended between the qualifying periods and there are children to the relationship that has nonetheless ceased.

In some circumstances a permanent partner visa can be granted shortly after the grant of the temporary partner visa too. This is usually where there applicant and sponsor can show that they have been in a long term relationship or there they have children to their relationship.

 

Australian Spouse Visa Advice

Australian Spouse Visa Advice

Many Australian partner visa applicants don’t know this, but where you submit your temporary partner visa application, affects where you must also be at the time your visa is granted if is successful.

For example if an applicant makes an application in Bangkok, Thailand for an offshore temporary partner visa, then if the visa is successful they must be offshore when the visa is granted too. The same rule applies for onshore temporary partner visa applications. If you lodge an onshore temporary partner visa application in Sydney, Australia, then you must be in Australia if the visa is successful. Whilst you remain outside Australia the temporary partner visa cannot be granted.

When applying for a Spouse Visa

Remeber, it is always important to keep in regular contact with your case officer and let them know in advance of any travel plans you may have during the processing of your visa application. It is also a legal requirement to let the Department of Immigration and Citizenship (DIAC) know of any change of address.

For the grant of permanent partner visa, if you lodge your application while you are outside Australia, you can be either inside or outside Australia when the permanent partner visa is granted. If however you lodge your permanent partner visa application in Australia you must be in Australia when the permanent partner visa is granted.

Remember too that when you apply for the temporary partner visa, you also apply at the same time for the permanent partner visa however a decision is not made until at least two years after the grant of the temporary partner visa so that the Department of Immigration and Citizenship can be satisfied that the relationship between the applicant and sponsor is still genuine and continuing.

 

I have the no further stay condition attached to my Australian tourist visa

I have the no further stay condition attached to my Australian tourist visa, can I get it removed?

I want to stay longer in Australia.

The no further stay condition

Condition 8503, commonly referred to as the no further stay condition is sometimes attached to an Australia tourist visa (subclass 676).

With regards to an Australian sponsored family visitor visa (subclass 679) it must be attached as a condition of that visa.

The Department of Immigration and Citizenship (DIAC) decision-maker has no discretion to not attach the no further stay condition to a sponsored family visitor visa.

Condition 8503 prevents the visa holder applying for another visa whilst they are in Australia. In short, they must leave Australia to apply for any other visa.

Can I have the no further stay condition removed from my visa?

Many people ask the question, can I have this no further stay condition removed from my visa, particularly in the case of tourist visas. In many cases a person has come to Australia as a tourist and has become involved in a relationship with an Australian citizen or permanent resident, and seeks to extend their visa or apply for some other type of Australian visa, but is prevented from doing so because of the no further stay condition.

In very limited circumstances the no further stay condition can be waived, so it is vitally important that if you have the no further stay condition attached to your visa and you are seeking to have it removed, that is, waived, that you get professional advice.

Australia’s migration regulations provide the circumstances in which the no further stay condition can be waived. If you are able to have the no further stay condition waived, then it is no longer in effect and it effectively allows the visa holder to then make another visa application whilst they are still in Australia.

A strong word of caution however, is that even if a person is successful in having the no further stay condition waived from their current visa, there is no guarantee that their further visa application will be successful. They will still have to satisfy all of the primary criteria for the successful grant of that visa, and even then there is no guarantee that the no further stay won’t be imposed on any subsequent visa if granted.

 

The no further stay condition

The no further stay condition

Many Australian visas are issued with a certain condition known as the no further stay condition.

For some visas the no further stay condition is mandatory, that is, it must be imposed on the visa and the Department of Immigration and Citizenship (DIAC) decision maker has no discretion to not impose the no further stay condition.

For other visas the DIAC decision-maker has the discretion whether or not to impose the no further stay condition on the particular visa being applied for.

What is the no further stay condition?

The most common is known as Condition 8503 and it is found in the Migration Regulations. Condition 8503 provides that whilst in Australia a holder of a particular visa with this condition attached to it cannot apply for another visa.

As stated in some instances the imposition of this condition is mandatory, and in others it is totally discretionary. In the case of an Australian sponsored visitor visa (subclass 679) this condition is mandatory and must be imposed by the decision-maker, whereas with an Australian tourist visa (subclass 676) the decision-maker does have the discretion to impose the condition.

What that means…

In the case of a tourist visa, a decision-maker may impose the no further stay condition where they have some residual concerns that the visa applicant is not intending to visit Australia as a genuine visitor only, yet there is not enough evidence to suggest this assumption. The consequence of having the no further stay condition attached to a visa, is that the holder cannot apply for any other visa whilst they are in Australia, except for a protection visa. The holder must depart Australia in order to first apply for another visa.

A clear example of how the no further stay condition works is as follows. If person arrived in Australia on a sponsored family visitor visa, as stated, the no further stay condition must be applied to their visa. This means that they would be prevented for applying for an onshore partner visa, and must leave Australia to apply for an offshore partner visa.

Of course in any event they would still need to satisfy the primary criteria for the successful grant of a partner visa in any event.