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Hello everyone,

My partner and I wish to apply for an Offshore Partner Visa (Provisional). In our opinion, and with our evidence, we believe we have been in a de facto relationship since about 21 December, 2012. Our evidence should be enough to prove social context, nature of commitment, nature of household and financial aspects.

From 21 December, 2012 to 31 December, 2013 we lived together in an apartment in Ulaanbaatar, Mongolia. I had to leave Mongolia in order to re-commence my studies for the 2014 academic year back in Australia. My degree cannot be completed via distance. So, we have been apart now for about 3 and a half months. We definitely have enough evidence to demonstrate sustained and regular contact during these 3 and a half months.

I note that under s 5CB(2)(c) of the Migration Act 1958 that we either must "(i) live together, or (ii) do not live separately and apart on a permanent basis." This is an essential element for defining a 'de facto relationship'.

My question is: given we intend to submit the application for the Partner Visa within about 1 month, and that we will at that time still not be living together, will the Immigration Department consider us to not meet the above legal requirements? Indeed, we no longer rent that apartment. That we 'do not live separately and apart on a permanent basis' relies merely on the successful grant of the Partner Visa, which would allow my partner to come and live with me in Australia.

How does the Department understand the timing of the relationship? Do they count backward from the time of the submission of the application, or will they simply consider the period during which we lived together (from 21 December, 2012 to 31 December, 2013)?

I am very concerned that the Department will consider us as failing meet the legal requirements for a de facto relationship, due to my partner and I being physically separated at the time of submission of the application.

(NB: We did in fact apply for a Visitor Visa for my partner, but this was unsuccessful, so we must make the application offshore. Also, we're a same-sex couple, so the Prospective Marriage Visa is unavailable to us).

Any guidance anyone could provide, especially those who've made applications whilst being physically separated, would be hugely appreciated. :)

Thank you!
 

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On the date of the application you must have been in a de-facto relationship for at least 12 months. The 12 month period can include periods where you were not physically together, as long as you were not living separately and apart on a permanent basis.

In this context, the only thing that is relevant is the relationship evidence at the time the application is made (although obviously you will continue to collect additional evidence for future use after you have lodged the application).

How much temporary separation is acceptable will depend on your overall relationship history and the quality of the evidence you will provide.

In your particular case I would count back from the date of the application to 21 December 2012, as long long as you have good evidence to cover that entire period including the months you have been apart. You need to provide strong evidence that the de-facto relationship has continued since you returned to Australia.

If you could find a way to spend some time together before you lodge the application, then that would probably be helpful.
 
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