Partner visa - Form 888 Declarants May Expect a Call from the DIBP

Departmental officers are increasingly contacting supporting witnesses to Partner Visa and Prospective marriage visas who provided Statutory Declarations or Forms 888 to verify the content of their statements.

Form 888s (or Statutory Declaration in other forms), which contribute to the assessment of the social aspects of a relationship, must be taken very seriously by supporting witnesses since, under the Statutory Declarations Act 1959, people who intentionally make a false statement in a statutory declaration are liable for punishment of 4 years imprisonment. In addition, the Migration Act 1958 (the Act) provides penalties for providing false or misleading statements of 12 months imprisonment or a fine of AUD12,000.

A Form 888 generally needs to be completed by an adult Australian citizen or permanent resident who knows the visa applicant and their partner or fiancé(e) and the history of their relationship (supporting witness);

A Form 888, like any other Statutory Declaration, must be signed before an authorised person, as prescribed by the Statutory Declarations Act 1959 and Statutory Declarations Regulations 1993.

The list of authorised persons includes:

• Justice of the Peace;

• medical practitioner;

• legal practitioner;

• civil marriage celebrant or registered minister of religion;

• dentist;

• nurse;

• optometrist;

• pharmacist;

• physiotherapist;

• full-time teacher;

• police officer; or

• public servant with 5 or more continuous years of service.

Any attachments to the Declaration must also be certified by a prescribed person.

If the Applicant is overseas and no Australian citizen or permanent resident is available to provide a Form 888, it may be filled in by someone who is not an Australian citizen or permanent resident, however, in these circumstances, the statement cannot be considered a statutory declaration under Australian law: the form 888, under policy, should then be witnessed or certified according to the legal practices of the country in which the statement is made. Failing that, it should be witnessed by a person whose occupation or qualification is comparable to those listed above. This person should sign, date and specify their occupation at the bottom of the statement. At best these requirements should also be confirmed with the nearest DIBP office overseas.

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Partner visa - are you providing enough evidence to Australian Immigration?

The Permanent Partner visa (second stage) is the Subclass 100 and the Subclass 801. Generally the Department of Immigration and Border Protection (DIBP) will make contact with you approximately two years after the Partner visa is lodged. At the time of request, the applicant generally needs to provide:

1. statements from the applicant and the sponsor;
2. updated police clearance in Australia; and
3. updated evidence of cohabitation, financial and social aspects of the relationship.

 

We have recently received many enquiries concerning applicants that have lodged their own Subclass 100/801 that have received unfavourable decisions or request for further evidence from DIBP despite having presented the usual documents and evidence required for this visa.

 

This issue has arisen due to DIBP becoming stringent with assessing documents provided during the second stage of the partner visa and subsequently it is seeking more evidence than only statements and updated police clearance. DIBP’s requirements are to see evidence that the relationship is genuine and continuing following the grant of the temporary visa. Further to lodging the temporary partner visa application, it is ideal to keep a healthy record of all the documents between you and your partner in preparation of the permanent visa stage.

 

Deciding on the evidence that DIBP requires can be difficult and can delay the approval of the visa if not correctly submitted.

Nevett Ford has extensive experience in different areas of migration and can assist you with preparing an application that satisfies DIBP. For further information please contact us for a consultation.

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I am in a relationship with an Australian but do not have a visa. Can I apply for a partner visa while onshore?

This is a question which seems to be asked quite frequently these days. The answer is that in some limited circumstances it may be possible for persons who are in a relationship with an Australian citizen, permanent resident or eligible New Zealand citizen and who do not have a current substantive Visa, to apply for a partner visa whilst onshore.

Generally speaking, in order for a partner visa application to be valid, the making of the application must comply with schedule 3 criterion 3001 of the migration regulations, which provide that the application must be made within 28 days of last holding a substantive Visa.

If the relevant schedule 3 criteria has not been met, it is necessary for a decision maker to determine if compelling reasons exist for not applying it. Compelling reasons relate to the hardship that can result if an unlawful noncitizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas.

Under policy, compelling reasons include the existence of an Australian citizen child or a long-standing partner relationship (taken to be at least 2 years) between an applicant and sponsor, at time of application.

The term ‘compelling’ is not defined in the legislation, however in a full Federal Court case it was said that in any view of the meaning of compelling ‘the circumstances must be so powerful that they leave the decision maker to make a positive finding that the regulation should be waived’. Policy states that the existence of a genuine relationship between an applicant and their sponsor is not sufficient to establish compelling reasons to waive schedule 3; however it is not prescriptive as to what circumstances do constitute compelling factors.

Another hurdle which applicants must overcome is that in addition to being able to demonstrate that there are compelling circumstances, it is also necessary to show that the failure to lodge a partner visa application whilst not holding a substantive visa was due to circumstances beyond the applicant’s control.

In summary therefore, whilst it is possible for persons who do not hold a current substantive Visa and who are in a partner relationship to lodge a partner visa application, it is necessary to be mindful of what is required to be shown in order to avoid a rejection.

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