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The Importance of Choosing the Right Option Given Your Circumstances.

Know your options when you are in a new and genuine relationship and you have had a partner visa refused.

In Australia, applicants apply for the temporary and permanent components of a partner visa at the same time, however they are assessed at least two years apart. Exceptions to this rule may apply if you have been in a de-facto or married relationship 3 years or more, or 2 years and have a child of the relationship.

A temporary Partner Visa allows the spouse or de-facto partner of an Australian Citizen, Australian Permanent Resident or eligible New Zealand Citizen to live, work and study until a decision is made on the permanent partner visa. Partner visas can be applied for onshore in Australia or offshore and the criteria that must be met for each is very similar, however, if an applicant has had an onshore partner visa application refused or cancelled, the applicant is unable to lodge a second onshore partner visa. If they would like to lodge a second partner visa they are required to go offshore.

In this case the applicant had been granted a temporary Partner subclass 820 visa with her former spouse. Due the relationship ending, the applicant’s permanent Partner subclass 801 application was refused. The applicant engaged Immigration Solutions for advice on her options to apply for a partner visa with her current partner and Australian Citizen.

If a partner visa has been cancelled or refused, section 48 of the Migration Act prohibits an applicant from lodging a second onshore partner visa. To overcome the section 48 bar, an applicant can choose to go offshore and apply for an offshore temporary 309 partner visa.

As this applicant had already lodged an onshore partner visa that was subsequently refused due to the relationship breaking down, the applicant was required to go offshore and lodge a temporary Partner subclass 309 visa with her new de-fact partner. To be eligible for a temporary subclass 309 visa the applicant and sponsor must be able to show the Department of Immigration and Border Protection that they are in a genuine and ongoing relationship, consenting freely to the relationship and to the exclusion of all others

Together with the applicant and sponsor, Immigration Solutions Lawyers were able to provide the appropriate evidence to the Department. Time frames for decisions on the subclass 309 visa generally range from 10-12 months. Immigration Solutions Lawyers were able to secure a grant within 5 months.

The applicant will be assessed for a permanent Partner subclass 100 visa two years after the date of the 309 (temporary) lodgement.

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