Are long distance relationships automatically not considered de facto?

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Are long distance relationships automatically not considered de facto?


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Old 02-10-2011, 02:22 PM
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Are long distance relationships automatically not considered de facto?

Hi everyone!

Was hoping someone could help me out. We are starting to put our application for a Partner visa together but are unsure if we will qualify.

Living together for >12 months but not continuously

I am an Aust PR, sponsoring my American partner, J. We have mostly been in a long distance relationship, though periods of separation have been temporary.

Oct 07: Met in person

Nov 07 - Aug 08: Meeting up in different places (our dating period)

Sept 08: J moves in with me in London for 6 months (De facto relationship. We do not have a joint bank account, but can prove his payslips went into my bank account. I can also prove that I supported him financially. Also we have shared correspondence addressed to both of us at the same address)

Mar 09: J moves back to US due to UK visa expiry and bad job market.

Apr 09 - Apr 10: 1 year temporary separation (We can prove we met each other every 3 months during this time, photos of the times we met up and have email screenshots and letters to and from each other)

May 10: I quit my job in London move in with J in NYC for 5 months. (We have joint bank accounts, proof that we share income and expenses, wedding invites addressed to both of us, cards from his family, bookings for joint travel paid by him)

Oct 10: I leave for travel around South America for 2 months as my tourist visa only allows me 6 months in the US - J is unable to join me due to work commitments. (Proof of correspondence: Skype logs and phone bills, postcards I sent to him. Our joint bank account shows me withdrawing money overseas.)

Jan 11: I return to NYC and live with J

Apr 11: I return to NSW for temporary period of separation and set up a residence in preparation for J's planned move to Aust in Dec 11 or Jan 12.

Other evidence are ticket stubs, photos, a statement from his bank showing that I am his supplementary credit card holder and cards from my family addressed to both of us.

I am planning to register our relationship in NSW when I return in April. It will take two months to process and I'm hoping to submit the certificate as evidence of our relationship with his application in June.

Question: Would this be considered a de facto relationship with enough evidence to support? I am worried about the 12 month rule as well as our periods of separation.

"Usually Resident"

I have had Aust PR since 2003 and got my RRV in 2007. I have lived in NSW since 2001, first as a student, then as a PR and my family lives in Perth (they bought property there). I worked in Sydney for 4 years then left Australia mid 2007 and have lived abroad since then.

However I have submitted an Aust tax return for 2008 and 2009 (None for 2010 as I quit work) and I have a credit card and a bank account there, which I occasionally use for purchases. I am planning to head back to Sydney at the end of March and find a job and a lease by May, evidence of both which will be included in our Partner application.

Question: Would I still be considered "usually resident" in Australia for the purposes of the Partner visa?

Any help would be GREATLY appreciated. Thank you!


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Old 02-11-2011, 01:12 AM
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Answering your residency question first, I doubt that you could really consider yourself nortmally resident until you have returned and shown that you have settled in Australia, one person doing something similar after having been abroad posted re having advice that she would need to be in Australia for at least three months.

As for the relationship, you really need to consider the residing together requirements of it and in recent time like just prior to the application so have a good read of the information you'll find under the eligibility section and in Booklet #1 via Family - Visas & Immigration

If you are going to pursue your relationship and make a commitment to one another, you ought to consider the PMV or if the Yank is still young enough at up to 30, is he eligible for the Work and Holiday visa or to apply for a skilled visa.





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Old 02-11-2011, 02:02 AM
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Thanks for your reply Wanderer.

I intend to reestablish myself in Australia by mid April of this year, and we are not sending the application in until June or July, by which time I would have been home for 3 months, have an Australian employer and an Australian lease - would this not be evidence of my being a resident? Also, I have always intended to return to Australia - I have maintained a bank account there since 2007 and have family ties to the country.

It's difficult being a PR in a relationship abroad as we have to be living together at the time of application but I as the sponsor have to be resident in Australia as well. Would our 3 months of separation between March and July (when the application is sent out) be considered "temporary" as I only left to reestablish residency in Aust?

Also, we have lived together from May 2010 to April 2010, bar 2 months of temporary separation while I went travelling. This is 11 months total, with 2 months of temporary separation. We can evidence this and we plan to register our relationship in NSW to waive 12 month requirement.

From experience, is it your personal opinion that this will or will not work?

If this is ill-advised then we will think about the WHV, it's just that that's a longer and more circuitous route and we would still have to go through the same issues we have now (+12 months, evidence of rel., etc) and also worry about things like bridging visas and getting an ETA etc.

Any ideas on which way this will swing would be great help! Thank you.


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Old 02-11-2011, 05:52 AM
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Hi Peggy,

The only way to know from a professional point of view whether the application could work is to find a migration agent to look over it. Of course you have to pay for the service, but they would be able to give you an answer from DIAC's standpoint and advise you on any further action.

If you want to risk the application fee of abour $2000, then in you can still go ahead and lodge an application as a de facto couple, but as Wanderer says, a PMV is less of a risk if you're thinking of getting married in the future anyway.


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Old 02-11-2011, 08:10 AM
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Thanks for your reply, aussiegirl. I am a little unsure about the chances of our application. Will definitely get the advice of a trusted migration agent before proceeding to submit.

From reading the legislation, the 12 month rule can be waived if a genuine and real relationship can be proved. I am pretty confident of that as we have lived together for almost a year bar a short 2 month separation due to work commitments.

My main issue is my residency clause, and there is less literature on this. From feedback sent to someone from DIAC on this forum, you have to prove ties - financial, familial, social and physical - to Australia. I can prove ongoing bank accounts from 2007 (the time I left), close family residing in Aus, network of friends, attendance at an Aust university, work experience at an Aust firm, and previous long term residence... all of which I will take to a migration agent to ask his/her opinion.

Thanks again.


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Old 02-11-2011, 09:21 AM
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An immigration agent may have a view and you could see five and perhaps get five different views but for what it's worth, in my view I would not waste my money with getting a view on your on and off togetherness for they are not making decisions on behalf of Immi.

Compare your situation to what is given in the CAQ and it just does not stand up, compelling reasons not being associated with the term of a visa etc.
If he is able to get the W & H V, that is a far better choice to do that and build your history with hard documented evidence so you will not be in 12 months where you are now.

Do anything less and it is my opinion that he seriously risks blowing the application fee and any other decision would be extraordinary.
Even with the W&HV you will still need to do something to get 12+ months together as the W & HV is only good for just 12 months and so some people do consider coming over on a tourist visa, an ETA best and then taking a weekend over to NZ to apply for the W&HV or they may go about seeking a relationship registration after at least six months in Australia and you need to look at the conditions for that with the B, D & M of NSW, ACT, Tasmania or Victoria if you will be residing in one of those, NSW easier to do it than Victoria by all accounts.





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Old 02-11-2011, 04:02 PM
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Thanks for checking in again Wanderer.

So our joint bank account, shared finances and correspondence at the same address from May 2010 to March 2011 doesn't count for anything at all, even if I can prove the 2 month period of separation was temporary and due to travel/work commitments, and we corresponded, and if I register our relationship in NSW before we submit the application?

From Immi's site:
Quote:
It is recognised that it is possible for the parties to be physically apart for periods of time, due to work or travel commitments, yet committed to a shared life.
In assessing a relationship, a number of factors other than periods of physical cohabitation are taken into account.
The only issue with a WHV is that he is unable to work for more than 6 months with one employer and after our experiences with job hunting during the recession, we would like to maximize our chances of finding work.


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Old 02-11-2011, 09:09 PM
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With what you are quoting re the separation, I think you will find it a bit of a stretch to have accepted:
Quote:
Oct 10: I leave for travel around South America for 2 months as my tourist visa only allows me 6 months in the US - J is unable to join me due to work commitments. (Proof of correspondence: Skype logs and phone bills, postcards I sent to him. Our joint bank account shows me withdrawing money overseas.)
If you can get a relationship registration established while your partner is still overseas, I'll be somewhat surprised.





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Old 02-12-2011, 03:17 PM
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Quote:
If you can get a relationship registration established while your partner is still overseas, I'll be somewhat surprised.
That's a question for the NSW State authority, I will have to give them a ring to ask. The application does not say that both parties have to be in Australia, and does not ask for evidence of the relationship. About the only caveat is that one of the two have to be residing in NSW.

Wanderer, thanks so much for your help, but I have a few last niggling things to clear up.

1. If we wanted to go the WHV + relationship register route to a Partner visa, that would depend on his WHV 462 visa not having a NFS condition, is that right? Because if it had a NFS he would be unable to apply for a Partner visa from within Australia?

2. If his WHV 462 has a NFS, would he be able to leave Aust, go to NZ, apply for an ETA, come back into the country, and then we could submit the Partner application, in which case he wouldn't be able to work while on a BVB? Do ETAs also have NFS conditions?

Any light you shed would be very helpful, thanks for all your feedback so far!


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Old 02-12-2011, 10:44 PM
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1. Yes depends on there being an NFS or not and though they are probably unlikely re a 462 but can have a restriction on applying for other skilled visas, to get the 12+ months together, a trip to NZ and an ETA are what can be considered.

2. ETAs do not have a NFS though he will need to be prepared to answer on why he is is making a visit so soon after having been in Australia on the 462 and so it does need to be a visit though people making a decision whilst on an ETA is not unheard of.

If applying for another visa whilst on one that has no NFS on it, it is normal for a BVA to kick in when the existing visa expires if still awaiting a determination on the new visa.
The only difference with an ETA is that it does not kind of expire until 12 months after grant and it is just three months at a time it allows but Immi may have someway around that, ie. possibly having people withdraw their ETA to have a BVA granted or they may issue a BVC.
Nobody has ever returned to the forum to post what process they actually experienced, but there's always a first time!





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