Filipino’s that have already overstayed or had their previous visa cancelled or refused

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Filipino’s that have already overstayed or had their previous visa cancelled or refused


Let’s get the facts straight when lodging a partner visa application i.e. (subclass 820/801) in Australia if you are from the Philippines even if you have already overstayed or had your previous visa cancelled or refused… let me explain this below.

Let’s look at some common knowledge and scenarios about partner visa application in Australia then later delve a little deeper in to Filipino’s who have already overstayed in Australia and wish to lodge a further on-shore partner visa application and the rules governing these types of partner visa application and when they were introduced.

So, for a Filipino partner visa application to be successfully lodged and then granted in Australia the Filipino applicantmust be married or in a de facto relationship with:

  • an Australian citizen
  • an Australian permanent resident
  • an eligible New Zealand citizen.

They must be in a ‘genuine and ongoing relationship’. They must live with their partner or, if you do not, any separation must be only temporary.

Both parties must freely consent to the relationship.

In most cases, permanent residence cannot be granted less than two years from when they lodge their application. They could be granted a permanent visa without having to fulfil the usual two-year waiting period if:

  • their relationship breaks down and there is children or a child of the relationship
  • their partner dies and you can show that your relationship would have continued if your partner had lived and you have close business, cultural or personal ties in Australia
  • theirrelationship breaks down and they or members of their family unit have suffered family violence
  • at the time they applied, they have been in a partner relationship with their partner for three years or more, or two years or more if they and their partner have a dependent child of your relationship.

For married Filipino applicants their marriage must be valid under Australian law.

Underage, polygamous and same-sex marriages are not legal in Australia.

The marriage could be valid under limited circumstances if one person is younger than 18 years of age.

Note:- Same-sex couples can apply for this visa based on their de facto relationship.

De facto Filipino applicants usually must have existed for at least 12 months immediately before they apply for this visa.

Note:- Time spent dating does not count towards a de facto relationship.

You can be granted a visa without having been in a de facto relationship for 12 months if:

  • the Filipino applicant can demonstrate compelling and compassionate circumstances, such as having dependent children
  • your de facto relationship has been registered in Australia (this is not available in all states and territories so please make sure we cover this matter carefully and accurately before you make a decision to apply for this type of application in Australia).

The Filipino applicant and Australian sponsor must also be older than 18 years of age and not be related to their partner by family. This means they cannot be an ancestor or descendant of one another, or have a parent in common.

Expansion of partner visa eligibility in Australia was allowed and if the Filipino applicant did not hold a substantive visa (a visa that is not a Bridging visa or a Criminal Justice visa) and have had a visa refused or cancelled since their last entry to Australia, they will be subject to section 48 of the Migration Act 1958 (the ‘Act’).

This section, i.e. 48 of the Migration Act 1958 (the ‘Act’), bars Filipino applicants from applying for another visa while in Australia, except for certain prescribed visa classes, for example a Protection visa or a Bridging visa.

However, from 14 September 2009 they may be eligible to apply for a Partner visa in Australia if you meet certain strict criteria.

Additional criteria that must be met by affected Filipino applicants in order to make a valid partner visa application in Australia if they have already overstay their initial substantive or was refused or had their visa cancelled are:-

  • If the Filipino applicant had a visa cancelled or refused since you last entered Australia, there are four criteria that you will need to meet to be able to lodge a valid Partner visa application in Australia. These are:
  • The Filipino applicant must not have had a partner visa refused since they last entered Australia
  • The Filipino applicant must not have had a visa refused or cancelled on character grounds under section 501 of the Act
  • They must provide with their application a form 40SP Sponsorship for a partner to migrate to Australia completed and signed by an Australian citizen, Australian permanent resident or eligible New Zealand citizen who declares that they are the applicants spouse or de facto partner
  • They must provide with their application two statutory declarations from Australian citizens, Australian permanent residents or eligible New Zealand citizens (other than your partner) supporting the existence of their relationship with their partner. These declarations must be made not more than six weeks before the day the Partner visa application was made.

Note:-Meeting the criteria will simply enable you to lodge a valid application.

You will also still be subject to all other eligibility requirements for the Partner visa. Once you have made a valid application, you will be assessed against the legislative requirements in the same way as all Partner visa applicants who apply in Australia.

Note:- Because the Filipino applicant lodged an o-shore partner visa application whilst ‘not on a substantive visa’ they willstill be entitled to MEDICARE Cover but will need to apply for full-time work an rights. This has further implication on the sponsor’s capacity to maintain the application during the 12 to 15 month application process period if the Filipino partner visa applicant can’t secure work rights. This aspect of the application must be thoroughly discuss and understood by both the Filipino applicant and the Australian sponsor and a strong application for work rights needs to be submitted to the department of immigration.

Also the Filipino applicant must meet certain health requirements.

The results of their health examinations are generally valid for 12 months. This applies to them and any dependent family members included in their application in Australia where they were or they did not have a substantive visa at the time they lodged their on-shore partner visa application.

Filipino partner visa applicants lodge in Australia must also meet certain character requirements.

Filipino applicants must be prepared to provide a police certificate from each country they have lived in for 12 months or more during the past 10 years after they turned 16 years of age. Do not arrange for police certificates until the department of immigration asked for it.

If they are 18 years of age or older, they must sign an Australian Values Statement to confirm that they will respect the Australian way of life and obey Australian laws. The statement is included in the visa application form. The Filipino applicant must have read, or had explained to them, the Life in Australia book before they sign the statement.

If the Filipino applicant has debts to the Australian Government then they must settle this and have no outstanding debts to the Australian Government or have arranged to repay any outstanding debts to the Australian Government before an onshore partner visa can be granted.

The Filipino applicant must provide biometrics (a scientific form of identification) as part of the application.

Filipino applicants can include family in their application such as their dependent children in their partner visa application in Australia:

They can include their other dependent relatives in their application only if they hold, or held, a Prospective Marriage visa (subclass 300).

They can also apply separately and lodge their own visa application form if:

  • they are in Australia when they apply
  • they have already lodged your application but it has not yet been decided.

If they want to apply separately, they need to do so before a decision is made on your permanent (subclass 801) visa application.

These family members must meet the requirements for including family members in your application. The application must include documentary evidence of their relationship with the Filipino applicant.?? Family members must be able to show that they meet health and character requirements as well.

The Filipino applicant and anyone included in their application must be in Australia when the application is lodged and also to be granted the subclass 820 visa. They need to provide documents to prove the claims they make in the application. The documents are listed in our Pre-Checklist and this can be made available if we decide to accept your application to lodge with the department of immigration.

From our experience some documents could take some time to obtain. We ensure that the Filipino applicant apply for them ASAP and have them ready when we lodge the application to reduce any delays in processing.

If the Filipino applicant cannot get some documents in time to include them with their onshore partner visa application then:

  • list the missing documents in your application
  • send them to us as soon as they get them so we can ensure the department received them.

For more information about lodging your on-shore partner visa application with the department of immigration and border protection or what our services include Visa Application Process then please log on to and send us your details so we can arrange to discuss you particular visa application process.


November 23, 2015