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Wife Visa


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Old 04-09-2013, 11:31 PM
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Wife Visa

Hi

I have australian PR which will expire in Apr 2014, I have been in Australia just once for validating Visa, After that I came to UK. Can my wife apply for Partner Visa, while we both are still in UK? If not what are my options.

I am planning to immigrate in August. Any help will be greatly appreciated.

Thanks

Mahesh


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Old 04-09-2013, 11:49 PM
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As a Permanent Resident, you can't sponsor a partner for a partner visa unless you are "usually resident" in Australia, which you have definitely have not been. Hopefully someone else can tell you exactly what is required in order for you to qualify as being "usually resident."

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Old 04-10-2013, 12:39 PM
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Hi Mahesh -

The term "usually resident" is not defined in the migration law and regulations. As such, it becomes a policy item subject to interpretation by DIAC. DIAC has in the past, in certain circumstances, said it expects someone who is "usually resident" to have a stay of 24 months without departure. However this is not uniformly applied - they will factor in other circumstances on a case by case basis. Here's some DIAC policy FYI:
--------------------
Officers must examine and weigh up all the evidence in order to establish where a person is usually resident. Such evidence could include, for example:

• the person’s physical presence in a country
• the length of that residence
• where they eat and sleep and have a settled home
• whether that residence is lawful or unlawful
• whether the person has retained or sought a right to re-enter a country in which they were formerly resident and
• the person’s intention to make or not make a particular country their usual home.
A person’s usual residence is not to be determined by a test relying on that person’s historic ties and citizenship, nor by whether or not that person holds a permanent visa for that country.
--------------------

Depending on your circumstances, my view would be that you might want to consider a sponsoring your wife for a partner visa after returning to Australia and staying long enough to produce clear evidence that you now intend to make Australia your home and have taken action to make this a reality. Do you need to wait 2 years after you've returned? Depends on the case officer's interpretation and the other evidence you present.

Hope this helps -

Best,

Mark Northam

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Old 04-10-2013, 02:23 PM
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Great info, Mark, that I couldn't find when I searched past posts. Thanks!

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Original Nationality: US
Visa #1: PMV (300) through Washington, D.C
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Visa #2: Subclass 820 (From PMV).
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PR Granted: Early April 2017.

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Old 04-11-2013, 02:15 AM
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Many times I've read on the forum how people from the UK didn't really have troubles with "usually resident" condition. I haven't saved those posts unfortunately, but I remember clearly that many were still living in the UK, but with a one-way ticket to Australia, and their partner's visa was approved.

You're Indian and perhaps you'll be assessed differently than British, so it might be better to call the Australia House and inquire.

Here's what Australia House says about the "Usually resident" condition:

Usually Resident

An Australian permanent resident is defined in Australian Migration regulations as a non citizen who, being usually resident in Australia is the holder of a permanent visa.

'Usually resident' is not defined in migration legislation, although the policy intent was for it to provide a test of the sponsors commitment to Australia and capacity to support the applicant. As a matter of policy, we usually support a generous interpretation, particularly given the increasing impact globalisation has on where people choose temporarily to live and work. Therefore in the absence of periods of long term residence in Australia, weight may be accorded to a person’s 'firm intention to reside' in Australia. ( The Joy of Emigration: Another Useful Email from Australia House )

All the best!

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Old 04-11-2013, 03:49 AM
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Hi bma -

Good post! I have also heard this from people who have had their application processed in London. Sadly, interpretation of the "usually resident" term varies greatly from one processing post to another, and while London has perhaps the most generous interpretation of it, I've seen others where the case officer insists on 24 months of physical presence in Australia and short of that will refuse the visa.

Best,

Mark Northam

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Old 04-11-2013, 04:03 AM
bma bma is offline
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Quote:
Originally Posted by MarkNortham View Post
...while London has perhaps the most generous interpretation of it, I've seen others where the case officer insists on 24 months of physical presence in Australia and short of that will refuse the visa.
You must be talking about offshore applications, right?

Well, 24 months are usually connected with parent visa applications, where a sponsor must be settled in Australia (usually two years). That's quite harsh, demanding from a permanent resident to have lived in Australia for two years before sponsoring a partner. Especially, when it's not even written in any regulation, that's just horrible.


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Old 11-02-2013, 10:52 AM
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hi guys,
Just wondering does this apply to Australian citizens? I've been living outside Australia for 2.8 years.....i didn't meet my partner for 6 months and then we moved in together 6 months later then we had to live together for at least one year. Will they hold that against me? It seems a bit crazy.....what else could of i done in my situation without being separated from my partner?

Thanks


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Old 11-02-2013, 12:30 PM
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Hi Rhirhi -

Good point. It's important not to confuse the "settled" requirement (which is often interpreted as having lived in Australia as your principal residence for 2 years) which affects a number of family visas (but not partner visasa) and the "usually resident" requirement for partner visas, which is less severe and looks that the applicant considers Australia his/her primary residence, but there is not a particular length of time prescribed for this in policy or otherwise.

Hope this helps -

Best,

Mark Northam

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Old 11-02-2013, 12:37 PM
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Okay! Thanks for your help Mark!

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