A request made by the Shadow Minister for Immigration and Citizenship recently exposed a gaping hole in partner visa processing, with the backlog of total onhand applications up from 161,060 at the end of June 2014 to 213,790 at the end of June 2019, a 28.13 per cent increase over 5 years. The number of onhand applications is important for those interested in Australia’s immigration policy and its effect on permanent migration numbers.
Partner visas are for spouses or de facto partners (and non-citizen migrating children) of Australian citizens, Australian permanent residents, and eligible New Zealand citizens. There are in fact six subclasses that come under the partner visa umbrella. These are:
Subclass 300 – Prospective Marriage visa;
Subclass 309 – Partner (Provisional) visa;
Subclass 100 – Partner (Migration) visa;
Subclass 820 – Partner (Temporary) visa;
Subclass 801 – Partner (Residence) visa; and
Subclass 445 – Dependent Child visa.
These are unique stars in the constellation of Australia visas as partner visas, referring here to the 309, 100, 820, and 801 subclasses, are subject to two-stage processing, meaning an application for the provisional visa is also an application for the permanent visa. The apparent double-up of visa subclasses is because there is an onshore and offshore partner visa that is determined by where the visa applicant is at the time of applying, and significantly whether a bridging visa is granted. It is sometimes common to refer to the provisional and corresponding permanent partner visas, that is, the offshore Subclass 309/100 - Partner visa and the onshore Subclass 820/801 - Partner visa.
The Subclass 300 – Prospective Marriage visa, is a temporary visa for fiancées who intend to marry their Australian citizen, Australian permanent resident, or eligible New Zealand citizen sponsor in Australia, after which they will likely lodge an onshore 820/801 partner visa.
Subclass 445 – Dependent Child visas is a special visa for dependent children of 309 or 820 partner visa holders (and even 445 visa holders) who have not had their permanent 100 or 801 visa application decided. It is a temporary visa to enter Australia until their parent’s visa ceases.
The unfortunate tale told in the request is of ever-increasing delays and a backlog of processing. Processing times for the temporary onshore 820 partner visa has more than doubled from 372 calendar days in 2010-11 to 784 calendar days in 2018-19 for 90 per cent of these applications to be finalised. This is noteworthy in respect to the integrity of Australia’s partner visa program and the two-year wait out period.
What is the two-year wait out period for Australian partner visas?
The two-year wait out period is where 820 or 309 partner visa holders must wait at least two years from the time their partner visa application has been lodged before their permanent 801 or 100 partner visa can be granted. This involves submitting further information to be assessed against the permanent partner visa criteria. The two-year wait out period does not apply if the relationship is deemed a long-term partner relationship at the time a partner visa (820/801 visa or 309/100 visa) application is made.
What is a long-term partner relationship?
A long-term partner relationship is defined as a spouse or de facto relationship between an applicant and their sponsor that has continued:
if there is a dependent child (other than a step-child) of both the applicant and their partner for at least 2 years; or
for at least 3 years.
When this exists and all other requirements have been met, visa applicants are granted a permanent partner visa instead of the temporary one.
When delays in processing reach that two-year mark from the date a partner visa application is lodged, case officers should be considering the permanent partner visa criteria as well. Those not in luck and who are granted the temporary partner 309 visa or 820 visa will be waiting a while as permanent partner visa applications are taking over 760 days for 90 per cent of applications to be processed from the date they are eligible, which is two years after the partner visa has been lodged. This effectively adds a further two years on top of the two-year wait out period!
What is interesting with the statistics provided by the Department of Home Affairs is that second-stage partner visas grants, that is, 100 and 801 visas are not counted in planning levels, meaning that the provisional 309 and 820 visas must be counted instead. With 84,126 visa applicants in this cohort waiting to be assessed as of 30 June 2019, this represents more than double the 39,799 allocated places for partner visas in the 2019-20 program year. This difference mocks the government’s rhetoric of granting fewer permanent visas in the 2018-19 program year than what was allocated and for all intents and purposes is simply kicking the permanent visa can down the road.
There will, of course, be some applicants who end up not being granted a permanent partner visa because their partner visas are refused or withdrawn, however, these numbers have remained relatively steady throughout the years.
Finally, the question was posed as to whether legal advice had been sought on the legal acceptability of restricting granting partner visas, which was rebuffed on the grounds of legal professional privilege. It may take a disgruntled visa applicant to apply for a writ of mandamus (compelling the Department of Home Affairs to process their visa application) in a federal court to obtain a legally binding answer as to whether that strategy is acceptable.