Australian Partner Visa Guide

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Table of Contents

Introduction

Australian partner visas are for people who have an Australian partner and who want to live with their partner in Australia permanently.

Australian partner visas are not easy visas to get. You have to  prove your relationship with your Australian partner is genuine. The Department of Home Affairs want to see a lot of evidence that you and your partner are really a couple. The truth is that partner visa applications are one of the most frequently refused visas.

People can be refused partner visas for various reasons:

This guide is for you if you are ready to apply for a partner visa and are confused. It won’t cover everything you need to know but will orient you to these visas giving you a general overview of the different visas and the process involved in applying for one. 

If you read it to the end you will have a good basic  understanding of what is ahead of you. You will be much more knowledgeable about these visas.

Remember though, that this is just an overview. There may be things that are specific to your situation which are not explained here. For this reason, don’t rely solely on this guide but speak to a migration agent or immigration lawyer if there are things you are worried about.

This is important. Your situation is completely your own. You and your partner have your own history, your own evidence that you are a couple, you own potential problem issues. A registered migration agent or immigration lawyer will be able to zero in on the specific issues that may be unique to you.

With that in mind, we can begin. 

Partner Visa Restrictions

Your Australian Partner – can they sponsor you?

First you need an Australian partner who agrees to sponsor you for a partner visa. They have to be one of the following:

*Certain New Zealand citizens in Australia are able to sponsor a person for an Australian Partner Visa. You could be an eligible New Zealand Citizen if you were in Australia on or before 26th February 2001. You would need to meet the specific criteria

My partner sponsored someone else before me – is this a problem?

The government has basically set a limit on how often an Australian sponsor can bring a partner into the country. You should ask your partner if they have ever sponsored anyone else for a partner visa. If they have, they could be prevented from sponsoring you.

Criminal Convictions

Your Australian partner will have to supply police clearance certificate/s in order for their sponsorship to be approved. If the sponsor has previous convictions for violent offences, harassment, certain crimes against children, among other things, then the case officer may refuse the sponsorship based on this. It is a good idea to talk to a migration agent or immigration lawyer in these circumstances.

You – the visa applicant

As you will be the one applying for the partner visa, you are called the applicant. There are also certain restrictions on you which can prevent you getting the visa. Broadly, these are related to your health and your children’s health, and to any past criminal activity, either your own or your children’s. There is also an issue if your last visa expired and you either don’t have a visa now at all or are only on a bridging visa.

I have a health issue – is this a problem?

You will need to have a health examination as part of the application process. If you have any family members coming with you to Australia, they will also need to have a health examination. In certain instances, even family members that are not coming with you to Australia may be asked to have a health examination.

If only minor issues come to light as a result of the medical exam, you won’t need to worry. If you, or any family members, have a more significant issue, then you may fail the health criteria which could mean you fail to get the visa. The rule is that if one family member fails the health examination, everyone fails.

There is, however, the possibility of a health waiver.

Is your health issue serious?

If you or your family members have a health condition serious enough that it could be a burden on the Australian health care system, then you may fail the health criteria. The issue generally relates to the on-going cost of treatment which is an expense that the Australian health care system will have to take on if you are granted the partner visa.

For certain other conditions, such as those needing organ transplants or dialysis, the issue concerns a limited resource and whether granting a partner visa to someone potentially needing these resources will impact the access of Australian citizens or permanent residents.

In short, if the condition is assessed as likely to result in a significant cost to the Australian community in the areas of health care and community services, or it could prejudice the access of an Australian citizen or permanent resident to certain types of health care or community services, you will fail the health criteria.

Again, there is the possibility of a health waiver. A health waiver simply means that regardless of you or your family member having failed the health criteria, the Department of Home Affairs can still grant you the partner visa provided you can convince them there are good reasons why they should.

You are essentially invited to make an argument that there are compassionate and compelling reasons why your failure to get a health clearance should be overlooked. You will also argue that the costs associated with your condition will not burden the health care system because you are able to mitigate, or reduce, these costs, for example, because you have significant savings.

I have a criminal record – is this a problem?

Another factor that could prevent you getting a partner visa is if you or your family members fail the character test. Any criminal conduct in the past that could be perceived as demonstrating that you or a family member are not of good character may result in you failing the character test and therefore not getting the partner visa. Additionally, other types of conduct, even if it has not resulted in a criminal conviction, can lead to a visa refusal.

There are various grounds under which you could fail the character test, from having a substantial criminal record, to general criminal conduct; exhibiting extremist views or associating with criminal groups; harassment and intimidation of a person or vilification of certain segments of the population; the list is quite comprehensive. In general, however, it is often past criminal convictions that are the issue for many people.

In your partner visa application, you and your family members are required to provide police certificates from every country you have lived in for more than 12 months since you were 16 years old. If you have a criminal record, it will show up on your police certificates.

It is still possible to get the partner visa if you or any family members fail the character test but it depends on the seriousness of the criminal conduct, how long ago it occurred, how frequently it occurred; whether it was on-going and demonstrated a pattern of behaviour or was a one-off event that occurred during a difficult period of your life; and whether there is evidence of rehabilitation since it occurred. Each case is different, however, and many factors are considered.

If you suspect you or a family member may not pass the character test because of past convictions or any general criminal conduct that may come to light, or indeed, for any other reason, it is a good idea to talk to a migration agent or immigration lawyer and decide on a strategy upfront before you lodge a partner visa application.

It will require a carefully prepared written submission with supporting evidence. Success is not guaranteed as the case officer assessing your visa application may still refuse to grant the visa due to the seriousness of the crime, or for any other reasons. Your chances improve, however, if an effort is made to put forward an argument with supporting evidence that demonstrates what happened was an aberration and not a reflection of your character.

You will need the assistance of a migration agent or immigration lawyer for this, because as with serious health issues, it is a difficult area to try to navigate alone.

Applying when you don’t have a visa

If you are in Australia and your last visa has expired, and you either don’t have a visa at all or are now only on a bridging visa, the situation becomes much more complicated if you now want to apply for a partner visa. There is an extra set of requirements that you need to satisfy termed Schedule 3 Criteria. Only in very limited circumstances will you be able to get the partner visa. 

One of the ideas behind these extra requirements is essentially to penalise people who don’t manage their visa situation with sufficient care by creating an obstacle to a subsequent successful visa application. 

On the other hand, it may be that you have not let your visa situation drift but you now hold a bridging visa for other reasons. A bridging visa, however, does not have the status of other visas and is basically just a short-term ‘permit’ that provides you with a legal status within the country, preventing you from being ‘unlawful’. Unfortunately, if you hold a bridging visa you still have to satisfy these extra requirements.

If you can’t satisfy these extra requirements there is a possibility you can still get the partner visa provided you have compelling reasons why these extra criteria should not be applied in your case. This is called a Schedule 3 waiver. The bar is set high, though, and your reasons need to be strong, legitimate, and persuasive, and supported by substantial evidence to convince the case officer assessing your visa application not to apply these extra criteria in this instance. 

This is a complex issue and you will definitely need the help of an immigration lawyer or migration agent to assess whether you stand a chance of getting around this obstacle or not.

Can I bring my children to Australia?

Yes, you can bring your dependent children to Australia if they meet the requirements set out below. In each case the dependent child must not be married, engaged to be married, or in a de facto relationship.

Dependent children must be one of the following:

Spouse visas – are you married to an Australian?

If you are married to an Australian citizen or permanent resident, or eligible New Zealand citizen, you can apply for a partner visa on the basis that you are their spouse. Your marriage must be recognised as valid by Australian law.

Although the terms spouse visa and de facto visa are common, in reality visas are generally categorised according to where you lodge the application – inside or outside Australia.

If you are outside Australia, you can apply for the 309/100 partner visa. If you are inside Australia, you apply for the 820/801 partner visa. In both cases you can be married to your partner (your spouse), or in a de facto relationship. 

There is also a prospective marriage visa which is a visa that allows you to enter Australia in order to marry your partner – after which you would apply for the 820/801 onshore partner visa.

Is the partner visa easier to get if we get married?

No. By itself the fact you are married to an Australian does not mean much. It is relatively easy to get married and get a marriage certificate. At the end of the process you are legally married. It does not mean, however, that you are a real couple. It just means you both completed the legal process to become a married couple.

If you got married within the context of a genuine relationship, however, then it can help to show commitment. If have been together as a couple for a reasonable period of time, have lived together, travelled together, shared your lives, and are now married, it will help you prove you are in a genuine, committed relationship.

So I don’t automatically get a partner visa because I married an Australian?

No. There is no special status for you just because you married an Australian. The Department of Home Affairs won’t give you a visa just because you can show them a marriage certificate. The issue is whether your relationship is real.

De facto Partner Visas

If you are in a de facto relationship with an Australian citizen or permanent resident, or eligible New Zealand citizen, you can apply for a partner visa on the basis that you are their de facto partner.

Again, although often termed de facto visas, they are more accurately described as simply partner visas. You can be either married or in a de facto relationship and still get one of these visas. The main distinction with partner visas is where you lodge your application: 820/801 if you are inside Australia; and 309/100 if you are outside Australia.

What does a de facto relationship mean?

The definition of de facto relationship in the migration legislation includes the following factors:

The relationship must be genuine

The concern of the Department of Home Affairs is that your de facto relationship is genuine. You and your partner should have a serious, committed, on-going relationship. You should have combined your lives to the same extent as a married couple would. You should have made a commitment to sharing your future lives together.

As you can see, what’s being described here is not just a romantic relationship, but a couple who behave as a married couple without actually being married.

You need to live together

De facto couples generally live together if they are in the same country. It is one of the main characteristics of a de facto relationship as opposed to a more casual relationship. This is why it is given such importance in the migration legislation. 

If there are legitimate reasons why you don’t live together these need to be explained clearly and strong evidence provided to support your claim, but generally, for most people the default position is that you should be living together.

Must have been a de facto couple for 12 months

The rule is that you and your de facto partner must have been a de facto couple for 12 months immediately before you apply for the partner visa. This applies to people making a partner visa application on the basis of a de facto relationship but does not apply to those making a partner visa application on the basis of a marriage.

We’ve been apart for a couple of months – what can we do?

If you are in the same country and not living together you can still get a partner visa provided you have a good reason why you are apart, such as a work commitment that requires one of you to live elsewhere for a period of time. 

This would only be a temporary situation and the expectation is that you will be living together again as soon as you can. You will need some good evidence to prove your claim that you actually have to live apart for this time period.

What if we live in different countries?

Obviously, if you are applying from outside the country you may not be living together at the time you apply. The expectation is that you and your partner will have spent a reasonable amount of time together, however. You would not be living together but this would be a temporary situation. The amount of time you have spent living together whether inside or outside Australia will be considered in an assessment of your overall relationship. Obviously, the longer you have lived together the better.

If you have never lived together and are in different countries, then maybe a prospective marriage visa would be something you could consider. Read about this visa further down in this guide.

Register your relationship if you are inside Australia

If you and your partner have not been in a de facto relationship for 12 months immediately before applying for a partner visa, you may be able to navigate around this requirement by registering your relationship,

In certain states and territories in Australia you can register your de facto relationship. This gives it a legal status that is recognised by the Department of Home Affairs.  If you register your relationship, you can still get a partner visa even though you and your partner have not been in a de facto relationship for 12 months.

You can register your relationship in NSW, Victoria, Queensland, ACT, Tasmania, and South Australia.

So will we get the visa if our relationship is registered?

No, registering your relationship, alone, is not enough to get a partner visa. It just means you have navigated around the rule that requires you and your partner to have been in a de facto relationship for 12 months immediately before you lodge your partner visa application.

I’m still married – can I apply for a de facto partner visa?

Yes. If you or your partner are still married, you can still apply for a de facto partner visa.
You have to convince the case officer, however, that your relationship with the person to whom you are still married is over, and that you and your current partner are in a committed relationship with each other only.

Generally, it is a good idea be in the process of finalising your divorce and have evidence of this.

Same sex relationships – married and de facto

If you are in a same sex relationship with an Australian, you can get a partner visa. You can be either married or in a de facto relationship.

In December 2017, the Australian government held a national referendum asking the Australian people to vote on whether or not they agreed that same sex couples should be allowed to marry. The ‘Yes’ vote was 61% . The law was subsequently changed. You can now get married in Australia, or if you were married outside Australia, your marriage will be recognised in Australia.

Which is better – a married or de facto relationship?

One advantage of a married relationship is that you don’t have to show your relationship has existed for the 12 months immediately before you lodge your partner visa application as you do in a partner visa application based on a de facto relationship. If you are in a de facto relationship, however, you can also navigate around the 12 month rule by registering your relationship in most states in Australia. 

A marriage, however, can help show commitment – as long as you have other evidence you are a genuine couple. If you have plenty of evidence that shows you have been living together, sharing your finances and have combined your lives,  then getting married will help show you are committed to a future together. 

The duration of your marriage is also something that is considered – if you have been married a reasonable amount of time this can help. If you got married a month ago, however, and don’t have much history to show that you were a couple before the marriage, your marriage, by itself, is not strong evidence you are a genuine couple. There is an understanding, however, that in certain cultures people won’t necessarily be living together before they get married but there should be other evidence that the relationship is genuine.

The issue is whether your relationship is genuine – not whether you are married or not. If you are not ready to get married, then don’t get married. You can also get a partner visa based on a de facto relationship with an Australian.

How to get a partner visa – a genuine relationship

If you have read this far, it is probably clear by now that the form of your relationship is not the major issue when applying for a partner visa. You can be married or in a de facto relationship. You can also be in a same sex relationship, either married or de facto. The main issue the Department of Home Affairs is concerned with is whether your relationship is genuine. They want to see evidence that you have been together for a reasonable amount of time, live together, are committed to the relationship, and that you are planning a future together.

You prove your relationship is genuine through documents

You tell the story of your relationship with documents. If there are no other issues, such as health or character concerns, the success of your application will depend on your evidence. A case officer at the Immigration Department will open your application on their computer and make a decision whether or not to give a partner visa based on the documents sitting there with your application form.

Each piece of evidence should add to the picture

You have to build up a picture of your genuine relationship through your documents, Each piece of evidence should demonstrate some aspect of your relationship. Together they should make it obvious that you are a real couple in an established relationship. Below is an explanation of how your visa is assessed and what kinds of documents the Immigration Department are looking for.

How are genuine spouse and de facto relationships assessed?

The Immigration Department break up the assessment of your application into the following four areas:

They look for documents from each category that support your claim that you are a genuine couple living in a serious committed relationship. They also consider your relationship as a whole but generally these are the areas that are scrutinised. 

Financial Aspects of the relationship

The Department of Home Affairs assume that people in a committed relationship combine their finances and deal with this area of life as a couple rather than individually. Some of the documents you could show to prove you have combined your finances are bank statements from a shared bank account. Producing a pdf bank statement showing an account in both your names with months of transactions for shared expenses would be good evidence. A shared bank account that has been opened but rarely used is of little benefit however.

Shared payment of utility bills in both your names and evidence that you paid these as a couple would be good evidence of combined finances.

If you got a loan together for a car, household item like furniture, and can produce the loan contract with both your names on it, then this would be very useful too. Or did one of you get a loan, or commit to a financial obligation, and the other person agree to be a guarantor for the loan or obligation?

There are various other ways to prove you and your partner approach your finances as a couple.

Nature of the household

The assumption here is that as a couple in a serious relationship you will live together and share household tasks. If you rent a place together, then a copy of the lease with both your names on it would help prove you live together. The bills for utilities – gas, electricity, internet, etc. – in both your names and addressed to you both at the same property would also prove you are living together.

If you have children you would have arrangements in place for looking after them, and would be able to produce documents from places like schools and doctors that would list you as a parent, guardian or carer.

A statutory declaration from each of you separately listing how you divide up the household tasks is valuable. The idea is to go into some detail and build up a picture of your actual day to day life together.

Social Aspects of the relationship

If you are a genuine couple the Department of Home Affairs believe you would present yourself as a couple to the world. Your friends and family would know about your relationship and would be able go into some detail about your relationship history.

You would probably have evidence of you and your partner messaging each other and also messaging your friends and family on Facebook or other social media, with comments, photos etc. The overall impression for anyone looking through this would be that you and your partner are clearly a couple and have been in constant contact and that your friends treat you as a couple rather than just two friends.

Any evidence of you and your partner participating in activities as a couple would be valuable, whether this be evidence of joint membership of gyms, sporting or cultural groups, or anything you do together as a couple in a social sense.

If you have travelled together you could produce travel itineraries in both names from travel agents or from online booking sites, plane ticket and hotel reservations in both names, and payment for any activities you did while on holiday. You might also have travel booked for the future which you could produce as evidence.

Nature of the commitment

The Department of Home Affairs also look for factors that would suggest your commitment to each other is strong and well-established, and that you are planning a future together. How long you have been together as a serious couple, and how long you have been living together and sharing your lives can also point to how deep your commitment is to the relationship.

You might have a plan to open a business together, to have children, to save for or buy a property together, and have some evidence of these plans.

One of you might have supported the other emotionally through a difficult period, or financially while they studied. The overall circumstances and history of your relationship is really what you have to consider here, in order to show that you are supportive in an emotional and practical sense to each other and have been for some time.

Your Relationship Statement

It is a requirement of a partner visa application that both you and your partner prepare separate relationship statements detailing your relationship. This will cover such things as where you met, when you met, how your relationship developed, when your relationship become serious, and when you both made a commitment to each other and become a couple. If you are married, when did you decide to get married, how did things develop to this point, and when and where was the wedding?

What are some of the places you have been together? Have you met each other’s parents? When did you move in together? How do you divide the housework together, and what are your shared arrangements for your children if you have any?

Have you spent any time apart, and if you did, what was the reason for this? What are you plans for the next few years, and what about beyond that in the longer term? Basically, provide a thorough account of the history of your relationship and where you see it going in the future.

It is important that you both spend time on these and produce very accurate, very detailed, and very comprehensive statements. Dates, times, and places matter. You also want to avoid inconsistencies between your individual statements, between your statements and answers you have provided on the forms, and between your statements and other documents you provided. It may be an error but the case officer assessing your application could pick it up and seek clarification, or in a worst case scenario, it could raise unnecessary suspicion.

These must be written on statutory declarations and must be signed in front of a person able to witness these declarations.

These are important pieces of evidence where you walk the case officer through your relationship from the beginning, referencing all the pieces of evidence you have provided that support your story.

Witness Statements

You will also need at least two statutory declarations from Australian citizens or permanent residents describing what they know about your relationship and attesting to its authenticity. They can be friends and family. They have to provide copies of their passport or evidence of their permanent residency with their declaration.

The Department of Home Affairs provide a form for this – a Form 888 – which provides spaces for whoever is filling in the form to detail what they know about your relationship. The problem with this form is that it does not provide much space to make a detailed, comprehensive declaration. 

The alternative to using a Form 888 is to use a Commonwealth Statutory Declaration, which is permitted and  provides more space for someone to tell Immigration what they know about your relationship. 

If your evidence is a little scant in other areas it may be a good idea to have your witnesses prepare longer, more detailed statements by attaching additional pages to the Form 888 or to have them make the declaration on a Commonwealth Statutory Declaration.

Partner visa checklist – where can I get one?

Some people consider partner visa applications to be relatively straightforward and something they can do themselves. What they look for then is a simple checklist of documents that they can use as a guide to prepare their application.

The problem with this approach is that your checklist may not be that great. It may leave out alternative kinds of evidence you could provide if you don’t have any of the types of evidence it lists. It is not wrong to use checklists but they are often very generic and don’t account for the fact that every partner relationship is different.

A checklist also won’t give you an assessment of your evidence as a whole and tell you where your application will be weak and whether it is worth proceeding with an application at this time or if a better idea is to wait until you have more evidence.

We don’t have a lot of evidence – what can we do?

The reality for a lot of couples is that they don’t have all the evidence that would be ideal. They may have evidence of social media interaction, photos together, and evidence of travel together, but evidence of shared finances and of living together is a bit sparse. You could wait, obviously, until you have the necessary evidence.

This may not always be an option, however, because you may have an existing visa expiring soon, maybe a student visa for example. You could go offshore and lodge a partner visa from outside Australia, but maybe you really want to stay in Australia with your partner. 

In most cases, and especially in these types of situations, it is worthwhile speaking to a migration agent or immigration lawyer and getting a realistic appraisal of your chances and then having them handle your visa application. It does not mean your application will be successful, as it mostly comes down to the evidence you provide. It will, however, improve your chances.

Why use a migration agent

A registered migration agent or immigration lawyer will first assess your overall situation. What visa are you on now? When does it expire? Do you have any health issues or things that will show up on a police clearance from another country? Has your partner sponsored anyone else for a partner visa? Do you have any children and are you including children on your application?

How long have you been together? Are you living together now? What kind of evidence do you have? If you are outside Australia, how often have you and your partner been together since you started your relationship? Is it worth going ahead with an application now based on your situation now and on the evidence you have.

A migration agent or immigration lawyer will have suggestions about alternative types of evidence. You may be missing potentially useful things you could supply that are specific to your relationship but that you never considered.

It is in this kind of discussion with a migration agent that possibilities are drawn out that you might not have figured out alone. During the preparation of your visa application more possibilities in the way of evidence often come to light after you have had time to think about things more carefully and been able to sound out your agent on whether or not your new ideas would be useful.

A migration agent or immigration lawyer also knows the law and has online access to the policy documents that the case officer uses to assess your partner visa application. They also receive updates from the Department of Home Affairs on any changes to the visa, to processing times, to information that is very useful to know if you are about to lodge a partner visa application.

How Alta Australia Visa can help you

We will map out the best way and best place – onshore or offshore – for you to apply for the partner visa, and when would be the best time to apply based on your evidence and your current visa.

Assess your evidence and give you guidance

We will assess your evidence and give you guidance on what else is needed.

In situations where you need to apply quickly because you have a visa expiring and want to make the application in Australia rather than go offshore but don’t have a lot of evidence, we will:

The object here is to address problems upfront and present an argument to the case officer that is credible. If your relationship is genuine and of a reasonable duration but you don’t have a comprehensive amount of evidence in certain areas, it is still possible to get the visa if you can convince the case officer that, notwithstanding these omissions, the relationship is still genuine.

Written submissions are important in these situations. To ignore the issue and hope the case officer doesn’t notice means it is likely you will get requests for further evidence from the case officer and it is also more likely you will get a refusal. Again, hard evidence is what the case officer assessing your application is looking for but they are open to some level of persuasion if you can provide explanations,

We help prepare your relationship statements

We will assist you both in making your relationship statements in statutory declarations so that they are valuable pieces of evidence, explaining your relationship history clearly, checking for inconsistencies, helping you explain things that need explaining, such as time spent apart, so that your declarations tell the story of your relationship in a convincing way.

We help prepare your witness statements

We will help you get witness statements from your friends and family to support your visa application. We will arrange a time to contact them when they are free, and help them to make a reasonably long, fairly detailed statement, something that is actually useful and supportive of your application.

As mentioned above, the Department of Home Affairs has a specific statutory declaration form called a Form 888, which does not provide much space for the witness to go into much detail. The end result is that often the evidential value of these forms tend to be weak. They don’t tell the reader very much about your relationship, and they are often done in a less than enthusiastic manner by the people who have written them for you.

Your friends and family obviously want to help you, but if you simply send them a form to fill in, and leave it to them, you will probably get back something that is not very useful. There are exceptions of course, but most people don’t like forms and your returned Form 888s will probably demonstrate this.

We think it is a better idea to spend a bit of time on the phone with your witness before they complete the form and possibly send them a list of points detailing the kinds of things they can write so they do a decent job. 

In certain instances, if your other evidence is not very substantial, we think it is better to get your witnesses to make these statements in a Commonwealth Statutory Declaration, which allows for a longer and more detailed statement.

We arrange bridging visas for travel

If you apply from within Australia, we will manage any bridging visa applications you may need to leave the country while the application is being processed, though the government fees for these are extra.

We will deal with any requests for further information or clarification from the case officer at the Department of Home Affairs.

Not just form filling then?

No. It is true that parts of the partner visa application process are straightforward and you could probably do it yourself – get police clearances, medical checks, provide passport photos and fill in the forms. This is not the core of a partner visa application however. This is the easy part.

The core part of a partner visa application is in determining what evidence to present to the Department of Home Affairs to prove you are a legitimate couple in a married or de facto relationship, and also in recognising and coming up with ways of addressing the areas where there could be problems.

Navigating from visa to visa

If you are inside Australia and you are not a citizen or a permanent resident, you will be on a visa which will have conditions and obligations attached to it. You can’t just forget about this visa when you decide to apply for a partner visa.

An example is someone on a student visa deciding they don’t have to attend classes anymore because they met an Australian who is willing to sponsor them for a partner visa.

Your student visa comes with conditions, one of which is that you continue to attend class and pay your fees. If you breach these conditions, your visa will be cancelled.

A cancelled visa creates all kinds of problems that you really want to avoid. The default advice in these situations is to continue doing what is required on your current visa, attending classes, etc., and to talk to a migration agent or immigration lawyer before you do anything else.

What kind of Partner visas are available?

There are two main kinds of partner visas. – partner visas for an applicant who is outside Australia, and partner visas for applicants who are inside Australia.

These visas are available to married couples, de facto couples, and same sex couples (whether married or de facto).

There is also a prospective marriage visa for people who want to come to Australia, marry their partner and live together before applying for an onshore 820/801 partner visa.

820/801 Partner visa application – inside Australia

If you are the applicant and you are inside Australia, you can apply for the subclass 820/801 partner visa. This is only for applicants who are inside Australia when they apply. You have to be both inside Australia when you apply, and inside Australia when the visa is granted.

Advantages of 820/801 onshore partner visa

For most people inside Australia the ideal visa is the 820/801 partner visa application. The advantage is that you can stay in Australia with your partner and work and study and get Medicare while your application is being processed, which may take a long time.

Can I come on a tourist visa and apply for an 820/801 onshore?

Yes, if you are outside Australia, but want to be with your partner in Australia while your application is being processed, you might be able to get a tourist visa to come to Australia to see your partner. While here, you could possibly lodge an onshore, 820/801 partner visa application.

This pathway will depend on whether you can get a tourist visa, and whether the tourist visa you get allows you to make an application inside Australia for a visa. If your tourist visa has a ‘No Further Stay’ condition on it, you will not be able to lodge an onshore partner visa application.

Unfortunately, you can’t request that your tourist visa be granted without a “No Further Stay’ condition. It is at the discretion of the case officer who processes your tourist visa application whether or not there will be this condition attached to your tourist visa. A tourist visa is meant for tourists, and not meant as a  pathway for an onshore visa application. If you are inside the country, however, there is nothing stopping you from lodging an onshore partner visa application.

If you and your partner have not spent much time together it may be a good idea to get a tourist visa and visit your partner inside Australia anyway. A long distance relationship without you both having spent much time together is not usually the basis for a promising partner visa application.

If your tourist visa comes with a ‘No Further Stay’ condition attached and you can’t lodge a partner visa application while you are inside Australia, at least you will have an extra few months of time together living as a couple. When you have to leave the country, you can apply for the 309/100 offshore partner visa and hopefully will be able to produce evidence that you were living together as a couple in Australia during this trip.

Tourist visas – be careful

It is a good idea to list the reason for the trip to Australia as ‘visiting your partner’. The Department of Home Affairs will have your tourist visa application on record and could check it when you eventually apply for the partner visa. If you didn’t list the reason for the visit to Australia as ‘visiting your partner’, you could have a problem, as there is now an inconsistency in your story. You are claiming in your partner visa application that you came to Australia to spend time with your partner but on your tourist visa application this was not listed as the reason for the visit – you said you came for a holiday or to visit a friend.

No Further Stay Condition – must go offshore to apply

As described above, you may be prevented from lodging an 820/801 visa application onshore, if you have a restriction on your current visa which prevents you applying for and being granted another visa while you are in Australia. This is called a ‘No Further Stay’ condition.

If you have this condition on your current visa, you will have to leave Australia and apply for a subclass 309/100 partner visa from outside. There are very limited circumstances where you can still apply onshore even with this condition on your current visa. For most people, however, this will not apply, and you will have to leave the country before making an application.

Subclass 309/100 Partner Visa- outside Australia

If you are the applicant and you are outside Australia, you can apply for the subclass 309/100 partner visa. This is only for applicants outside Australia when they apply. You have to be both outside Australia when you apply, and outside Australia when the visa is granted.

The disadvantage is that you can’t stay inside Australia with your partner and live and work while the application is waiting to be processed. The advantage is that they are generally processed faster.

During the processing period, you might be able to get a tourist visa for a few months to visit your partner in Australia. In fact, this is recommended for 309/100 partner visa applications.

Ideally, you want to show you have spent a lot of time together both before and after the application is lodged. The more time you have spent living together, sharing your daily lives, the more evidence you will be able to collect to prove your relationship is genuine. With this in mind, you should visit your partner in Australia if possible, and if possible, they should probably visit you in your country also.

Whether or not you are a genuine couple is assessed at the time you lodge your partner visa application, but time spent together after the application is lodged may help if your application is refused and your sponsor appeals the decision.

Remember, however, that a tourist visa has its own set of requirements and you have to satisfy these for the visa to be granted.  It is not a sure thing that you will be granted a tourist visa to visit your partner. See above for more about tourist visa applications.

If the Immigration Department considers your country one where there has been pattern of abuse of Australia’s visa system then at the very least they will look very closely into your tourist visa application, and may even refuse it.

Subclass 300 / Prospective Marriage visa

There is also a prospective marriage visa, which is a visa for people outside Australia who want to come to Australia to marry and live with their Australian partner. It is a temporary visa of 9 months duration.  It allows you to come to Australia, live with your partner, get married either inside or outside Australia, and then apply for an 820/801 onshore partner visa before the 9 month period ends. 

This visa is useful in situations where you and your partner have not lived together at all or very little, or shared your life to the extent necessary to gather all the evidence needed to get a partner visa. The prospective marriage visa will allow you to come to Australia to live with your Australian partner and share your life together as a married couple. This way you can collect all the necessary evidence needed for an onshore partner visa application. You would then apply for an 820/801 onshore partner visa before the prospective marriage visa expires, which is 9 months from date of grant.

You will still have to prove your relationship is genuine to get the prospective marriage visa. You would do this by providing evidence of how you met, where you met, and how the relationship developed. You can show evidence of travel to each other’s country and evidence of the time you spent together and any travel you have done in each other’s country as a couple. 

Photos, Facebook posts, emails, WhatsApp messages, and any other evidence such as financial transfers that supports your claim that you are a genuine couple would be necessary to prove that your relationship is genuine. You can’t get this visa if you have never met in person. 

You would also supply relationship statements from each of you detailing the history of your relationship and your intention to marry, along with supporting witness statements from Australian citizens or permanent residents who know the details of your relationship and who will attest to its authenticity. 

You also need to provide evidence of your intent to marry, such as a letter from a marriage celebrant.

This visa is only a pathway to an onshore 820/801 partner visa application. It is meant as a bridge to an onshore partner visa application and is not a visa that has any status beyond that one purpose. Once you are in the country on this visa, you would move in together, get married, and gather all the evidence that you need to use for 820/801 partner visa application.  

Which partner visa should I apply for?

It obviously depends on your circumstances, where you are and how much evidence you have.

The Application Process – Two Steps

The process of getting permanent residency in Australia through a partner visa is broken up into two steps: first the grant of a temporary partner visa and then the grant of a permanent partner visa. The process is as follows:

You apply for both the temporary and permanent partner visa on the one form and pay the application fee. If you are onshore you apply for the subclass 820 temporary partner visa. If you are offshore, you can apply for the subclass 309 temporary partner visa.

You supply all the evidence necessary to prove you are a genuine couple that meet all the requirements to be granted one of these visas. 

If successful, and you are onshore, you simply wait until you are eligible for the permanent visa assessment. If you are outside Australia, the 309 visa allows you to come and live in Australia until you are eligible for the permanent visa assessment.

Two years after the date this first initial application for the temporary partner visa is lodged you become eligible to be assessed for the permanent partner visa. You repeat the process and upload your evidence of a continued relationship. 

When this is processed, and if successful, you will be granted either a subclass 801 or 100 permanent partner visa which will give you permanent residency in Australia.

Exceptions to the two year waiting period – long term relationship

If your relationship with your partner is long-term, you can get the permanent partner visa immediately following the approval of your temporary partner visa.

A long term relationship is defined as one of the following:

If you can provide the evidence to prove you have been in a long term relationship with your partner, you will be a permanent resident of Australia immediately without having to wait the usual two year waiting period.

Time of Application criteria

Your relationship is assessed at the time your initial application is lodged. All the requirements for the visa must be met at this date. Your relationship must be assessed as genuine and continuing to the exclusion of all others on this date. Certain documents must have been supplied at this date for a valid visa application.

Decision Ready Application

It is preferable to upload everything you need for the case officer to made a decision at the time you lodge your initial application. This is called a ‘decision ready application’. It is possible to upload some of the evidence shortly afterwards as you get it if there is a delay or a rush – with the exception of certain documents like the witness statements that must be lodged on the date of application – but best practice is to do it all at once.

After the application is lodged, it is also best practice to continue to upload further evidence until the visa is processed and a decision made. It may be up to a year or longer until the application is processed, so you would want to provide new evidence as you get it to show you are still a genuine couple over this waiting period.

What happens after I apply?

Bridging Visa A

If you are inside Australia, and your visa situation is straightforward, you will automatically receive a bridging visa as soon as your partner visa is lodged. It won’t be active however. You current visa will still be active until its expiry date. On the date this existing visa expires, the bridging visa you received when you lodged your partner visa application will become active. It will give you a right to stay, work, study and receive Medicare in Australia until the time when your application is processed and a decision is made.

Can I get a bridging visa A outside Australia?

No, if you applied for an offshore 309/100 partner visa outside Australia, you won’t get a bridging visa to stay and work in Australia. It is only for onshore 820/801 partner visa applicants.

Bridging Visa B – if you need to travel

If you have a Bridging visa A and you want to travel overseas for a period while you are waiting for the decision, you have to apply for a Bridging Visa B.  

Processing times

Processing times vary but generally they are significant. There is no point listing them here because they change. In general, it’s a good idea to be prepared for a potentially long wait.
You may be lucky and your application is processed relatively quickly, however, other people can have long wait times for no apparent reason.

If you have applied for a 309/100 partner visa from outside Australia, you will usually have less time to wait than someone inside the country.

Getting the result

At some point after you submit the visa application, a case officer at the Department of Home Affairs will open your application on their computer screen and begin to go through your application.

Request for further information

If they are not convinced with the evidence you have supplied and want further proof you are a genuine couple, or there are inconsistencies or, any other issues they want you to clarify, then they may send you a Request for Further Information.  There are various other reasons they may request further information or further documents. In every case, it is important that this information is supplied within the time frame given.

Interviews

If Immigration want to interview you either in person or on the phone, you will be questioned in detail about your relationship. The expectation is that you will both be able to describe your relationship history, providing dates and places for various events, such as when you met, when you moved in together, etc.

You would also be expected to know details about each other, your families, your work history, anything in fact that normal couple in a serious relationship of reasonable duration would probably know about each other. It is a good idea that this is clear in your own minds and you are prepared for these kinds of questions if an interview is requested.

Temporary Partner Visa Granted

If all goes well, you will be granted your temporary partner visa.

If you were granted a subclass 820 visa, you can live, work, and study in Australia, and travel outside Australia on a separate bridging visa, up until the time a decision is made on your permanent 801 partner visa.

If you were granted a subclass 309 visa, you can now enter Australia and live with your partner, work, study, and travel outside Australia on a bridging visa, up until a decision is made on your subclass 100 permanent partner visa.

As mentioned above, if your relationship is considered long-term, you will also get granted the permanent partner visa soon after you receive the temporary visa grant. It is a good idea to point out in your application that your relationship is long-term, referencing the evidence, and request that you be granted the permanent partner visa at the same time as your temporary visa.

Partner visa refusal

You will know your visa has been refused when you receive notification from the Immigration Department. You will also receive a decision record from the case officer who assessed your application. In this document they will inform you that your visa has been refused and set out the reasons for the refusal. They will refer to the parts of the migration legislation that are relevant to your refusal and detail where you have not satisfied the criteria contained in this legislation for the grant of the partner visa.

Natural Justice Letter

If you receive a natural justice letter inviting you to comment then it means the case officer is considering refusing your visa application. It means they have found something they consider a basis for refusing your application, and are giving you an opportunity to put your side of the story before they come to a final decision. It is a good idea to get help if this occurs. It is also very important you respond within the time period the letter allows, preferably after you have spoken to a migration agent or immigration lawyer. If you don’t respond within the period, they will refuse your visa.

Can I appeal the refusal decision?

If you are inside Australia, you will have the right to appeal the refusal decision. Rather than the term appeal, the actual term used in relation to visa refusals is ‘merits review’. You will be informed of this right in the refusal letter.’

There are time limits within which you must apply if you want the refusal decision reviewed.
If you don’t lodge an application within this time period, you will lose the right to get the refusal decision reviewed. The time limit will be listed on the refusal letter.

If you don’t want the refusal decision reviewed, you have to leave the country. A bridging visa will keep you lawful in Australia for 35 days after the date of refusal.

If you are offshore, the Australian partner who sponsored you has a right of review. They will have 70 days to a lodge an application for review.

If you are offshore, however, it might be easier and faster to apply again rather than have your Australian partner seek a review of the refusal decision; however, this depends on the particular circumstances of your case.

If you applied for and were granted an offshore, subclass 309 partner visa, came to Australia on this visa, and then were outside the country when your permanent subclass 100 visa was refused, you will not have a right of review.

Conclusion

Hopefully this general guide has answered some of your questions. At least now you have an overview and some sense of how partner visas operate and what an application involves. Hopefully, you also see that getting a partner visa is not simply a case of filling in some forms.

This guide has not covered everything but just touched on the main issues in a general way. Take it as a primer on what is fairly complex visa but be aware that there may be issues with your application that need a closer analysis by a professional.

Good luck.