If you’ve been researching Australian partner visas, you’ll probably be familiar with phrases ‘time of application (ToA)’ and ‘time of decision (ToD)’.
It’s absolutely crucial that you understand the time of application and time of decision requirements associated with your particular visa subclass.
Here are some examples of how ToA and ToD requirements to different visa subclasses.
Time of Application
If you’re applying for an 820 onshore partner visa, you need to meet the visa criteria when you apply.
You can’t lodge an application after a few months of being in a relationship and expect to get an approval in 18 months’ time because you’ll meet the criteria then; you need to tick all the boxes before you lodge.
Your application is time-stamped when it’s lodged and the Case Officer will be paying close attention to the 12 months prior to that date, not the date when they pick it up.
Blocks of time apart or travel together very early in the relationship will be scrutinised by Immigration as they seek to determine the date on which you were a ‘genuine and commitment couple’ who do not usually live apart.
You can – and should – continue to attach supporting evidence to your pending partner application to show that you’re in an ongoing and genuine relationship. There is no obligation for the Department to request further information. As there is a massive gap (known as the processing time) between the application being lodged and a decision being made on the application (sometimes up to 2 years), it is crucial to update your application on a regular basis, providing evidence of the relationship such as social, financial, household and commitment evidence. As there is a maximum number of documents that can be attached to a lodged partner visa application, you must compile and lodge your evidence carefully.
You cannot leave it up to the case officer to guess if you are still in a genuine and ongoing relationship. But however much you attach, it won’t be enough to get you over the line if you didn’t meet the criteria at the time of application.
There is one slight exception here. If you live in a state where you can register your relationship, proof of this can be attached to your pending application and it will negate the 12-month cohabitation requirement associated with the visa.
If you marry during the processing time, and you didn’t have 12 months de facto evidence at the ToA, you are in trouble. If you’ve already applied for relationship registration or hold relationship registration, being married voids it, and as a result, the Case Officer requires you to have had 12 months’ cohabitation at ToA. The irony is that a commitment such as marriage can cause a partner visa to be refused based on legislation.
If you register your relationship, you must be living together when the visa is lodged and stay living together. It is possible to register when living apart, but this could only work if you registered before your moved in together, and before your lodged the 820.
Time of decision
You can lodge a 309 offshore spouse visa before you get married; however, you need to make sure you’re legally married before a Case Officer makes a decision on your application (a ToD requirement). Processing times can vary, so it’s better to marry sooner rather than later, and not gamble on a delayed processing time.
The prospective marriage 300 visa is an ‘engagement visa’; however, if you get married before a decision is made on your application, you can switch it to a 309 spouse visa application. Handy, eh?
When your 309 is granted, you have 12 months to enter Australia (from the date of your health or police check, whichever was first) to activate the visa. However, a 300 visa is strictly a nine-month visa and the clock starts ticking from the date the visa is granted.
Confused? Yes, it’s all highly confusing. Legislation for each visa subclass is unique and different visas have different ToA and ToD requirements.
ToA and ToD in relation to visa appeals
If your partner visa is refused, you can lodge an appeal at the Administrative Appeals Tribunal.
If you’re onshore, you must appeal within 21 days. If your offshore partner visa is refused, your sponsor can make an appeal within 70 days.
Here’s where ToA and ToD comes into it: if your application was refused because you didn’t meet a ToA requirement, it’s highly unlikely that your appeal will succeed. However, if the refusal was based on a ToD requirement, you may be in with a chance.
Here at True Blue Migration Services, we recently had a client who came to us after lodging their own 820 visa application and being refused. The refusal came because the applicant missed a ‘further information request’ from their Case Officer, requiring them to provide police clearances and medical reports. Because these are ToD requirements, we lodged an appeal on their behalf, which deems the application to ‘not be finally determined’ (decided). Our clients obtained the documents required and when the AAT remitted the Case Officer’s decision, the visa was later approved
Another client came us to after an 820 refusal for failing to satisfy 12-month cohabitation requirements. They engaged us to assist with AAT preparation. Even though a number of years had passed since their initial application was lodged, and they remained in a genuine relationship, this in itself cannot take away the fact that their ToA requirements weren’t met. Luckily, this particular couple lived in a state where relationships can be registered. As this is a ToD requirement, and does away with the ToA cohabitation requirement the appeal was successful. Even sweeter, given the length of their relationship, the partner was granted a PR visa straight away!
It’s a lot to take in
Partner visas are a major investment. There’s no doubt about it; they’re one of the most expensive visa subclasses, in terms of Government fees. Making a minor mistake because you don’t understand the ToA and ToD requirements associated with your particular subclass can cost you thousands of dollars, not to mention the time involved.
It’s important to get partner applications right first time around. Imagine waiting two years for a decision, only to receive a refusal because you didn’t attach your police clearance documents in time! Then you’re faced with either appealing the decision and waiting a year or two for that to be heard, or lodging another visa application entirely.
Do you meet ToA requirements now?
Before you go full steam ahead and lodge an application, check that you meet ToA requirements. If you don’t, or if you’re unable to register your relationship during processing, you’ll unfortunately need to wait it out a little longer.