The usual requirement for these visas is either proof of 12 months cohabitation in a de-facto partner relationship at time of application or proof of marriage (in which case evidence of 12 months prior cohabitation is not required).
There is now an alternative depending on which Australian State the applicant resides in.
Changes to the Migration Regulations provide that proof of 12 months cohabitation in a de-facto relationship is not required where the de-facto relationship has been registered with one of the State relationship registers (NSW, Queensland, Victoria, ACT and Tasmania).
It has been possible to register a de-facto relationship in New South Wales since 1 July 2010.
It is also possible to register a de-facto relationship in several other Australian states (including Victoria).
Relevantly, in New South Wales neither party to the relationship needs to be an Australian Citizen or Australian Permanent resident. This will assist those applicants seeking to be included as Secondary Applicants to their partner's Primary Application for a Permanent Residence visa.
More details on how to register a de-facto relationship with the New South Wales relationships register can be found here:-
http://www.bdm.nsw.gov.au/Pages/marriages/relationship-register.aspx
and here:-
http://www.bdm.nsw.gov.au/Documents/apply-for-relationship-registration.pdf
The Migration Regulations have been amended to make provision for a de-facto relationship which has been registered with one of the particular State relationship registers.
I am now advising my clients who are based in New South Wales and who have less than 12 months cohabitation in a de-facto spouse relationship at time of applying for either a Partner visa or as Secondary Applicant to their partner's Permanent residence application to apply to the New South Wales Department of Births Deaths and Marriages to have the de-facto relationship registered (and to lodge their visa application with a certified copy of the certificate of registration of the de-facto relationship).
This should then circumvent the usual 12 month de-facto relationship requirement where an applicant is applying for an Australian Permanent residence visa or a Partner (provisional) visa.
For those who require more detail of the applicable Migration Regulations these are set out below:-
Regulation 2.03A of the Migration Act now states:-
(1) In addition to the criteria prescribed by regulation 2.03, if a person claims to be in a de facto relationship for the purposes of a visa application, the criteria in subregulations (2) and (3) are prescribed.
(2) If a person mentioned in subregulation (1) applies for a visa:
(a) the applicant is at least 18; and
(b) the person with whom the applicant claim to be in a de facto relationship is at least 18.
(a) a person mentioned in subregulation (1) applies for:
(i) a permanent visa; or
(ii) a Business Skills (Provisional) (Class UR) visa; or
(iii) a Student (Temporary) (Class UT) visa; or
(iv) a Partner (Provisional) (Class UF) visa; or
(v) a Partner (Temporary) (Class UK) visa; or
(vi) a General Skilled Migration visa; and
(b) the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;
the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.
(5) Subregulation (3) does not apply if the de facto relationship is a relationship that is registered under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations.
Should you require any further advice in relation to these useful changes to the Australian Migration Regulations please email or telephone me.
Andrew Hackworthy
B.Comm/Ll.b (UNSW)
Solicitor/MARN 9790738
7/133 Macpherson Street
Bronte NSW 2024 Australia
Tel: 02 9389 2290
Email: hackworthy@optusnet.com.au
