December 8, 2022

How Love Can Hurt Your Visa Chances – ‘the definition of De Facto Relationships and Implications for GSM Points’

After spending years in the migration advice profession it becomes clear that simple and natural decisions can create potential quagmires for the unsuspecting. Be it travelling overseas while inadvertently holding the wrong bridging visa (or no visa at all) or applying for a police clearance at your local post office instead of lodging it online with the correct Federal authority, the implications of ill-informed or blissfully ignorant decisions taken by the unsuspecting can be far reaching. While the Rule of Law in Australia is comparatively robust

when compared with the rest of the world, the Department of Home Affairs after years of budget cuts, and layers of regulation built upon by successive Federal Governments is in desperate need of reform to protect the rights of future Australians (not to mention Australian corporate individuals who have to tackle it on a regular basis to access offshore labour).  

Unfortunately there are many examples of things to be weary of. Here is one that should be articulated clearly for any potential migrant who wishes to access the General Skilled Migration visa system when coming to Australia. 

Australia’s general skilled migration program is a points-based system which allocates ‘points’ according to an individual’s age, English language ability, education, work experience and a number of other criteria which then ‘ranks’ the individual within a pool of potential migrants. Since November 2019 there have been points allocated to an individual’s relationship status. 

This has created an unexpected pitfall for one looking or falling in love while also trying to make Australia home.

As provided within the Department of Home Affair’s March 2022 Newsletter:

For the purposes of calculating points under Schedule 6D, the definition of a de facto relationship is still as set out in 5CB of the Act and Reg 1.09A, however the difference is that reg 2.03A (the 12 month rule) is not applicable.

The SkillSelect system will allocate points for partner relationship status as follows (item 6D112):

  • Single – SkillSelect will award 10 points
  • Engaged – SkillSelect will award 10 points
  • Married – SkillSelect will award 0 points
  • De Facto – SkillSelect will award 0 points

‘GSM visa applicants’ marital status will sometimes change between lodging the EOI, lodging the visa application, and when a decision is made on points. This change of status may result in the loss or gain of points at visa assessment. For example, a person assigned 10 points (as single) at EOI, may lose these 10 points at the visa application stage if they have subsequently married Where intending applicants are both in a de facto relationship and engaged simultaneously at time of EOI, they may consider selecting “De Facto” rather than “Engaged” when calculating their point score irrespective of the length of the de facto relationship.   This will avoid being invited at a higher point score than what the visa applicant will be able to meet.

It is also important to note the implications of the overlay of the 12 month rule at visa stage.  For example an intending applicant may declare a de facto relationship at EOI (where no 12 month rule is applicable) but if that de facto relationship is of less than 12 months standing at visa application then that de facto partner will not be eligible for consideration as the visa applicant’s partner for purposes of the visa.

As mentioned above, for a suspecting migrant this impacts who they choose to love. Australian’s and Permanent Residents as de facto partners (although not articulated above by the Department of Home Affairs) provide GSM applicants with 10 points (the same as being single).

For those who found love whilst here in Australia on a temporary visa, be it at school or in a bar or whilst thumbing the screen on their phone, this becomes a serious implication. If they have a general skilled migration visa waiting to be approved or they have an expression of interest lodged and are waiting for an invitation, questions like how well you speak English and what job do you do suddenly have a whole different level of significance when meeting a future partner.