Can I still get a visa for my girlfriend? Can she travel to Australia during the border restrictions? These are the most common questions I have been getting lately because of the international border restrictions that Australia currently has in place.
When will the border open? Are there any other options for my girlfriend or fiancé? As the pandemic has progressed waiting times for Fiancé visas are coming down and in this article I also touch on why the Fiancé visa is an attractive option while the border is closed.
Australian Border Restrictions
Australia’s international border is currently closed to prevent the spread of COVID-19. But this does not mean that no one can come to Australia, in fact there are quite a few exemptions to the border restrictions. Firstly, some visa holders do not even need an exemption – they can come and enter Australia using the following visas:
309 – Partner Visa (temporary) applied for outside Australia
100 – Partner visa (Permanent) applied for inside Australia
445 – Dependent Child Visa
101 – Child visa
Exemptions for family
When it comes to getting your girlfriend or family members to Australia during the border restrictions, the most common exemption used is the “close family” exemption. So, what is “close family”, and can you use the close family exemption to being your girlfriend to Australia?
Close family
The close family category includes husband or wife, dependent children and de facto partners. Married couples will need to apply for an exemption (unless they hold one of the visas above). They will need to supply a marriage certificate with translation (if necessary) and evidence of their relationship. It is not just a matter of showing your marriage certificate. In fact, those who show just a marriage certificate will not be granted an exemption. They must show further evidence of their married relationship.
De facto partners can also enter Australia during the border restrictions. However, from my experience, the level of evidence that one must show to prove you are a de facto couple is extremely demanding, so much so that I suggest to most of my clients in a de facto relationship that they will need proof of relationship of more than 2 years plus a registered relationship here in Australia. The bar is very high for de facto couples and in my opinion, it is set higher than what needs to be shown to get the Partner visas on a de facto basis. While this may seem unfair it is a demonstration that the border restrictions are to be policed closely and those in a de facto relationship will really have to go out of their way to receive an exemption to enter Australia.
Children
Only children who are dependent on an Australian can enter Australia. This means that if your girlfriend is in Australia waiting for her partner visa – you probably will not be able to bring her children until after the covid border restrictions are eased. This is because you will not be able to show that they are dependent on an Australian.
If you are married to their mother or if their mother holds a 309, 100, 820 or 801 visa, then an application for a travel exemption should be successful.
Remember for children, the type of visa required depends on what stage their mother’s application is at. It also depends on where mum’s application was made and how old the children are. There are also other requirements for child visas that depend on which visa is being applied for, a good example of this is that a child applying for a Child visa who is over 18 must not only be dependant on their sponsor but they must also have been studying since they were 18 years old. In contrast a child who is simply added to their mother’s partner visa application (temporary stage 309 or 820) must only be dependant – there is no study requirement. Child visa options are very confusing and the requirements for each visa and the waivers available are extremely complicated. I do recommend that you talk to a lawyer who is an expert in this area, as most Migration Agents do not know the differences in the types, nor do they have the hands-on experience. I have applied for each of these visa types for children dozens of times and I understand right away what is required, the age limits, study requirements and what kind of documentation will need to be produced.
Girlfriends and Fiancés
The border is closed to all visitors except those who are married to an Australian or in a de facto relationship. Unfortunately, this means that your girlfriend will not be able to enter Australia because you are not married nor are you in a de facto relationship. Further, there is no other visa option available to her because your relationship is in its early stages – she will not qualify for anything else. This does not mean there is nothing to be done, in the next section I will reveal to the method that most of my clients are choosing – given the border closure.
Fiancé visa holders are not considered to be “close family” there is no travel exemption available to them. I understand this is totally unfair and there is currently a petition in the Australian Parliament to change this rule, however, I do not expect that this rule will change because the numbers of people being allowed to enter Australia recently has decreased due to the new Delta variant – it seems impossible that the categories of people who can get exemptions to travel could be widened. Having said this, it is the fiancé visa application that most of my clients are turning to for their girlfriends at this time.
Fiancé visa and the border
Why would you choose a Fiancé visa if Fiancé visa holders are blocked from coming to Australia? Well, the Fiancé visa leads to permanent residence in Australia. It is for those who have too short a relationship to get a full Partner visa. The other requirements for a fiancé visa are that you must have met in person, and you must genuinely 1) intend to marry; and 2) live together as a married couple. This means that for people who have only a short relationship – a girlfriend/boyfriend relationship, the fiancé visa is still an option because it does not require that you show a long-term relationship. The requirements are easier to meet than the Partner visa. You only need to have met and genuinely intend to get married and live as a married couple.
But the Fiancé visa holders still can’t get an exemption… so why are they your recommendation? Because the waiting time for Fiancé visas is currently 6-9 months and the waiting time for the Australian border to open is likely that or more. This means that by the time you get the Fiancé visa – she might actually be allowed to enter Australia – and when she does it will be for a permanent stay – not a three-month visitor visa. You can use this time while the border is closed to get her a superior visa – one that leads to permanent residence and one that allows her to work in Australia and get Medicare once she arrives.
There is also no financial or employment requirement for a Fiancé visa – whereas a Visitor visa applicant must convince immigration that, based on their employment and economic situation in their home country they will leave Australia. This is a big deal in the middle of a pandemic. Especially from South-East Asia. Very few women in South-Easy Asia will be able to show employment strong enough to convince immigration during this COVID period. Consider from Thailand for example. The economic circumstances in Thailand are that 80% of the country’s economy is based on tourism. She might even have a job and not get a Visitor visa because immigration will say that the economic circumstances in Thailand are such that she is still more likely to remain in Australia. This is the main problem. The Visitor visa is based on employment and economic circumstances in the home country – the fiancé visa is not. And this is the another reason I recommend the Fiancé visa for those who also intend to get married.
When will the Australian border open?
This is, of course, the million-dollar question. I do not know when the border will open. The politicians at the helm including the Prime Mister do not know when this will happen, however they have given some indications of the conditions that must be present for the border to open again.
It is my expectation that when a vaccine has been offered to all Australians then the border settings will be altered. I do not expect that the border will be opened to everyone. Rather I expect a staged approach. It would seem reasonable that. Skilled workers and students along with family and friends would be at the head of the queue. They are also the most likely to want to travel as soon as the border opens.
If you are looking to bring your girlfriend, fiancé, wife or children to Australia then please get in touch. Our Lawyer has years of experience in getting visas in this area. We recommend you use a lawyer who has hands-on experience not just a Migration Agent who might not necessarily know the important differences between the visa requirements and most importantly how all of this play in the real world – with real people – at a time of border restrictions and other higher-level considerations.
