How strict is the 12 month de facto relationship requirement?

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How strict is the 12 month de facto relationship requirement?


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Old 10-11-2010, 09:32 AM
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How strict is the 12 month de facto relationship requirement?

Hello everyone, I'm wondering how strict is the 12 month de facto partnership visa?

I currently have a 12 month tourist visa and I planned to apply for the partner visa at the end of it. I currently don't have a no further stay status on my visa. Due to when it was originally issued, I will just miss the full 12 months by 2 days.
My visa was issued on Oct 25 09 and it expires Oct 24 2010. Since the Oct 24th falls on Sunday, I was hoping to submit the application on Oct 22 2010; two days before the visa expires. You wouldn't think that submitting a visa 2 days early would be a problem, but when I called DIAIC they didn't say they wouldn't accept it, but continued to emphasize the 12 month requirement. I'm afraid that if went ahead and submitted the visa then i'd be putting the chances of getting approved at risk.

Has anyone experienced a similar situation?

Any advice?

Thanks in advance,

SG


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Old 10-11-2010, 01:52 PM
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2 days early??

Hi SG,

From doing massive amounts of reading in preparation for lodging our own visa application, it is clear that DIAC are highly conservative
They will not bother giving you advice that you need and will tell you the most basic, general info in response to any question.

As soon as you ask them something more specific, they will send you to someone for whose advice you will need to pay: a migration agent or lawyer.

So, here's to your query.

Some posts on this forum state that living together for six months prior to applying is sufficient according to a small entry in the DIAC bible, the Procedures Advice Manual (PAM) as long as your overall de facto relationship (genuine and continuing, mutual commitment to a shared life exclusive of all others) has lasted at least 12 months prior to applying.

http://www.australiaforum.com/visas-...-required.html

Then again, some people are just not that lucky:

http://www.australiaforum.com/visas-...lp-please.html

Given that you are based in Oz, visit the state library in your capital city, gain access to the Procedures Advice Manual, and check this reference for yourself. If it helps to bolster your case, make a specific reference to the citation from the PAM in your application to remind your Case Officer of the laws of the country....

Also, keep in mind that not all DIAC staff know the entire 16,000 page manual by heart!

Furthermore, can you extend your visa? If you have no problems staying on, this would be your easiest option, perhaps.

Tourist Visa (Subclass 676)

However, note that you had to apply TODAY to make the two weeks prior to expiry deadline. Oops...


Another way to beat the 12 month requirement is to register your relationship if that is available in your state. However, getting this done may take up to a few weeks, and that may be too late for you.


All the best,

ozmikal

PS: By the time the DIAC staff get to your application, you will be well over the 12 month requirement, especially if you extend your stay in Oz.
EDIT:
I have edited out some disparaging remarks for you ozmikal, that kind of attack on Immi Officers unwarranted.
For your information, the frontline people that the public deal with at Immigration will depending on their role have limited information and often of just one particular area of visas, the more general front counter role they have the less specific knowledge they will have on visas.
Many people such as yourself may feel that various employees are there to be immigration advisors on legislative matters but that is not the case at all for their function is more one of steering people through the process.
Like most things in life the onus is on an applicant as to whether they have eligibility.


Last edited by Wanderer; 10-12-2010 at 03:33 AM. Reason: remembered another useful post to add here

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Old 10-12-2010, 03:21 AM
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The suggestions by ozmikal could lead you into more strife than you want and referencing the PAM may help people with a greater understanding of the Legislation Immigration Officers must adhere to if they are willing to take the time to do so.

And I put Legislation in Bold because there is a lot of Black and White with any Laws and very little in the way of Grey.

Immigration Officers are bound by Legislation and to depart from legislation means that they themselves are breaking the law and if people like Ozmikal do not understand that and have an appreciation for the numbers of visas being continually processed that require consistency, then it is his grey day.

The PAM may be so many pages and it will be a lot less than what is in the legislation but given the way legislation is drafted the PAM is an interpretation of legislation to assist Case Officers because no one in their right mind would expect all Case Officers and support personnel to be totally knowledgeable of legislative detail and if you read some and all the cross referencing you will appreciate how unwieldy it can be.

Feel free to go read the PAM and refer to sections of it in an application if you feel that will support your case but it may also not.

As to whether applications need to comply with regulations to be eligible, enough has been said and if you want to risk your application fee, that's your perogative.

There was a post a couple of years back referencing a media report on Immigration applications rejected and the number was of the order of 160,000 p.a. and I do not know the breakdown nor what current rejection rate is but I'd reckon a fair percentage of rejections could be because eligibility is not met.





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Old 10-12-2010, 07:20 AM
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To Ozmikal,

Thanks for the reply. I share your frustration with going through this process. And I really appreciate the links to the other threads. Those helped put things in perspective. I wish you success on your visa.

To your question about extending my tourist visa, I have already done it once. I went from a 3 month ETA and was a granted a 9 month extension (12 months total). I am reluctant to apply again because I believe there is good chance that a "no further stay" label will be attached to it, and I'm certain they would want to see a one way ticket out of OZ before they granted anything! And as you know, a no further stay would prevent me from lodging an application on-shore.

As Wanderer said, the law is black and white, and the links you posted back that up, that being said, I'm going to apply anyway and take my chances since it will cost about $2,500 to apply for the visa vs. a plane ticket back home $2,200 + time away from OZ!

While reading the other threads I had a few ideas about how I could meet the full 12 month requirement without overstaying my visa. (and that really is the catch, i can't overstay my visa, and then apply for a partner visa)

Please feel free to give any advice:

Option 1: Put the application in the mail on Saturday, and when DIAC receives it on Monday, I would (hopefully) then be placed on a bridging visa and also meet the 12 month requirement (since I was only short by 2 days)! My question would be, is the application considered accepted when you put it in the post (SAT) or when they have it in their hands (MON)? That's the million dollar question and it would make all the difference since my visa expires on Sunday.

But again Ozmikal I appreciate your help.

SG


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Old 10-12-2010, 08:39 AM
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Rather than play with the dates and the problem with 12 months, a flight to New Zealand or Asia and return is far less than the visa fee and an opportunity to get the 12 months needed.





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Old 10-12-2010, 09:16 PM
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You're most welcome, SG.

The best thing about working with laws is that words are ever shifting and changing, and there is nothing black and white about the legal world at all! Laws make the world less grey, but never black and white: ask any lawyer to confirm that statement for you. That's why we have appeals and reviews in place; all law is a matter of interpretation.

SG, do take note that you do not have to actually live with your partner for the entire 12 months! Periods of separation, as long as they are not permanent, can be considered as part of your 12 months of living as de factos. Have a good reason for being away for 2 days, and there should be no doubt in the mind of the CO that you had a de facto relationship for 12 months (that is, of course, if you time for that criterion began upon the day you first entered Oz).

Unfortunately, I cannot tell you the answer to the million dollar question. I'm sure that DIAC staff can - it is an easy procedural question.

Here's another tip: some lawyers, including immigration lawyers, are more than happy to give you 30 minutes of their time to give you free advice. Here is one such service in Victoria: Legal Referral Service of the Law Institute of Victoria Law Institute of Victoria - Legal Referral Service and there may be one in your state (if you are not currently in Vic).

Another option for free legal advice is this place in Sydney: Immigration Advice and Rights Centre, though you do have to check if you fit their eligibility criteria for assistance.

If you do fly out to NZ, you may get the No Further Stay nasty on your return visa, and that will mean that you cannot lodge an onshore spouse visa (I'm sure you are aware of this).

Good luck to you!

ozmikal


Last edited by Wanderer; 10-13-2010 at 01:18 AM.

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