About the author
Jason ZHANG
MARA-registered migration agent,CTO of the Newstars Group, award-winning education and migration consultant at the Melbourne office, writing under the pen name Mitu Weiyuan.
With extensive hands-on experience in migration and study-abroad cases, a passion for applying migration law to complex visa challenges, and a specialisation in tackling difficult and unusual situations, the author has written dozens of Newstars’ essential study and migration guides — helping applicants understand not just what the rules are, but why they exist.
Most people assume that skilled migration points are assessed solely at the time of invitation. In reality, there is one important exception: partner points — for example, the 10-point bonus for being single, or the 5-point bonus when your partner holds four-band-6 IELTS, and so on.Under the Migration Regulations, partner pointsmust still be satisfiedat the time the visa is granted.
This means that if an applicant was single at the time of invitation and claimed the 10-point single bonus, but then began cohabiting or married after lodging their application — and their new partner does not hold four-band-6 IELTS or a skills assessment — their total points will drop, which can lead to a visa refusal. This article sets out the legal basis in detail.
All skilled migration points are governed bySchedule 6D of the Migration Regulations 1994and, moreover,with the exception of partner points,all other points are assessed at the time of invitation.
Age points
are assessed at the time of invitation
For example, suppose an applicant was 32 years and 360 days old at the time of invitation and turned 33 just a few days after lodging their application —when the case officer assesses the case, even though the applicant has already turned 33, their age points are still calculated at the time of invitation (30 points).The relevant legislative text reads as follows:
The above extract makes clear that, at the time of invitation,(At the time of invitation) the applicant’s agewas not less than 25 and under 33 (note the word ‘was’), the score is 30 points.
Language points
are also assessed at the time of invitation
Similarly, if at the time of invitation (At the time of invitation) the applicant held four-band-79 PTE, the language score would be 20 points, as shown below (note the word ‘had’):
Partner points
do not containany reference to ‘at the time of invitation’
So how exactly are partner points worded in the Migration Regulations? See the extract below:
As can be seen from the legislative text above, the requirements for partner pointsdo not include the ‘at the time of invitation’ qualifier seen for age and language points.This means thatif partner points decrease after the invitation, the total points score at the time of assessment will fall below the score at the time of invitation,which can result in a refusal on the basis of overclaiming points.
Taking the Subclass 190 visa as an example, under Clause 190.214(1), an applicant’s points scoremust not, at the time of assessment, fall below the score at the time of invitation,as shown below:
Note
Do not cohabit or marry before the visa is granted
To avoid a refusal caused by a drop in points, if you claimed the single bonus at the time of invitation,please, before your visa is granted,take careful note of the following:
1:do not cohabit with or marry anyone — remain single until the visa is granted (dating is actually fine, since in a Western context, dating simply means seeing someone — as long as each person remains in their own home and does not move in with the other); or
2:ensure your partner holds PR or citizenship first, before beginning to cohabit or marry; or
3:if your partner does not hold PR or citizenship,ensure your partner already held four-band-6 IELTS and a skills assessment before the primary applicant received the invitation, before beginning to cohabit or marry
This partner points policy, which came into effect on 16 November 2019,is, frankly, quite unreasonable — particularly given the extremely slow processing times for Subclass 190, 491, and 189 visas(many applicants have been waiting over two years without a decision).
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Documents that may expose your cohabitation
Some people may consider:I could simply pretend to be single, without telling the Department of Home Affairs,get my own PR sorted first and then apply for partner migration later — would that work?
The answer is:extremely risky. There are many types of documents that can expose the fact that you were cohabiting. If discovered during a future partner migration application, not only will the partner visa be refused — the sponsor’s PR may also be cancelled because they falsely claimed the single bonus at the time.
Several types of documents that may expose your cohabitation:
1. Residential address history (past 10 years) on your online application — when lodging a migration visa, the online application form typically requires you to list your residential addresses over the past 10 years. If, when applying for a partner visa, the 10-year address history provided overlaps with the sponsor’s 10-year
address history, and the overlap period predates the sponsor’s PR grant, the Department of Home Affairs may determine that the sponsor was already cohabiting with the applicant before the visa was granted.In that case, the sponsor’s claimed 10-point single bonus would be deemed a false claim, which could result in the sponsor’s PR being cancelled and the applicant’s partner migration being refused.
2. Form 80 submitted by the partner migration sponsor at their time of PR application — Form 80 must be submitted when lodging a migration visa, and Question 17 of this form also asks for your residential addresses over the past 10 years. If, when lodging the partner migration application, the start of the overlap between the applicant’s 10-year address history and the sponsor’s Form 80 addresses predates the date the sponsor’s PR was granted, the same issue arises.
3. Relationship history statement— when applying for partner migration, both the applicant and the sponsor must each provide a separate account of the development of their relationship, including when they first met and when they began cohabiting.The date of commencement of cohabitation must not be earlier than the date the sponsor obtained PR.
4. Visa lodgement history — this is a very easy point to overlook. Each time a visa is lodged, you must provide your current residential address at the time of lodgement, and this is recorded in the Department of Home Affairs system. Therefore,if, when subsequently applying for a partner visa, the 10-year address history or the Form 80 addresses do not match the addresses recorded at the time of previous visa lodgements, issues will arise.
It is therefore essential not to carelessly complete your 10-year address history or Form 80 addresses, because every visa application you lodge leaves a permanent record in the Department of Home Affairs system — a record that cannot be erased.
That concludes this article.
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