Should I register my de facto relationship and will this help me with the 12 month rule?
Applicant’s for a visa on de facto grounds would be aware their relationship should have commenced at least 12 months before applying for the visa.
The Department of Home Affairs (Department) makes this very clear on their website,[1] and is consistent with Reg. 2.03A of the Migration Regulations 1994, which requires that the Minister (for Home Affairs) must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.
It is important to note that Regulation 2.03A allows the 12-month rule to be waived in compelling and compassionate circumstances, AND where the de facto relationship is a registered relationship (and in certain other circumstances).
What is a registered relationship?
Section 2E of the Acts Interpretation Act 1901 (Cth) sets out that a person is in a registered relationship with another person if the relationship between the persons is registered under a prescribed law of a State or Territory as a prescribed kind of relationship.[2]
Presently, you can register a de facto relationship in the Australian Capital Territory,[3] New South Wales,[4] Queensland,[5] South Australia,[6] Tasmania,[7] and Victoria.[8] Not everyone however can register a relationship, for example residents of Western Australia or the Northern Territory cannot do so, nor can you do so if you are still legally married to someone else.
I have already lodged the application, is it too late to register my relationship?
It isn’t too late to register your relationship and you can do so even if your matter has been refused and your matter is on review before the Administrative Appeals Tribunal (AAT). In fact, Departmental policy recognises that “as long the de facto relationship is registered at the time the decision-maker is considering r.2.03A, the 12 month requirement does not apply”.[9]
An inability to meet the 12 month rule should not be fatal to your application if you are in a genuine and continuing relationship. If you need advice and assistance with your de facto visa application, please contact Daniel Moya to discuss your immigration needs.
[1] https://immi.homeaffairs.gov.au/supporting/Pages/evidence-of-relationship.aspx
[2] http://classic.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s2e.html
[3] https://www.accesscanberra.act.gov.au/s/article/civil-partnership-registration-tab-overview
[4] https://www.nsw.gov.au/family-and-relationships/relationship-register
[5] https://www.qld.gov.au/law/births-deaths-marriages-and-divorces/marriage-weddings-and-civil-partnerships/civil-partnerships/registering-a-civil-partnership
[6] https://www.sa.gov.au/topics/family-and-community/births-deaths-and-marriages/marriages-and-relationships/register
[7] https://www.justice.tas.gov.au/bdm/significant
[8] https://www.bdm.vic.gov.au/marriages-and-relationships/register-a-domestic-relationship
[9] See FOI disclosure log 2019/0036 of 19/09/19, MRD Commentary Partner visas, p13 https://www.aat.gov.au/about-the-aat/access-to-information/freedom-of-information/foi-disclosure-log
