Can Marrying an Australian Citizen Stop My Removal?

Why does marrying an Australian citizen not stop removal on its own?

Marrying an Australian citizen does not stop removal on its own because marriage is a personal status, not a visa. A person who is an unlawful non-citizen stays unlawful after the wedding, and the Department's duty to remove under section 198 of the Migration Act does not depend on whether the person is married. Our article on whether marriage lets a person stay in Australia explains the gap between being married and holding a visa.

Can a partner visa application stop my removal from Australia?

A valid partner visa application can affect removal because section 198 links several removal duties to whether the person has a valid application for a visa that can be granted in Australia that has not been finally determined. For most married couples, that is the Subclass 820. The application must be valid at lodgement, and the person may also need a bridging visa to be released from or stay out of detention. An application that is invalid, or a visa that cannot be granted onshore, gives no protection. Our page on the Subclass 820 visa explains the onshore pathway.

What extra criteria apply if I am unlawful when I apply?

An applicant who is unlawful, or who holds only a bridging visa, when applying for the Subclass 820 must generally meet Schedule 3 criteria unless the Department finds compelling reasons to waive them. Under departmental policy, a genuine relationship and the hardship of separation are generally not compelling reasons on their own. Our article on the partner visa after overstaying and our Schedule 3 waivers page explain how these criteria are addressed.

Does a previous refusal or cancellation change the answer?

A previous refusal or cancellation can change the answer because section 48 limits the visas a person may apply for in Australia after a refusal or cancellation since last entry. The Subclass 820 generally remains available to an applicant affected by section 48 if the additional requirements are met. A cancellation under the character provisions works differently and needs separate advice. Our article on the partner visa section 48 bar sets out how section 48 operates.

Will the Department question a marriage made while removal is pending?

The Department will look closely at a marriage made while removal is pending, because every partner visa application is assessed on whether the relationship is genuine and continuing, not on the marriage certificate alone. The couple's history before the marriage, their living arrangements and the knowledge of family and friends matter a great deal. Our article on partner visa relationship evidence explains what the Department looks for.

How does My Migration Lawyers act when removal is close?

My Migration Lawyers works quickly when removal is close, first confirming the person's exact status, the history of refusals and cancellations, and whether a valid onshore application can be made now. The firm then prepares the Subclass 820 application, the Schedule 3 submission and the evidence of the relationship together, so nothing is lodged half ready. Couples in this position can contact our partner visa lawyers as soon as removal is raised.