Partner Visa Sponsor Who Is a Citizen by Descent

A citizen by descent partner visa sponsor is an Australian citizen who was born overseas to an Australian parent and later became a citizen by applying for it. The short answer is that a citizen by descent partner visa sponsor can sponsor a spouse or de facto partner in exactly the same way as a citizen born in Australia. The legal status is the same. What is different is the evidence, the couple's connection to Australia, and the practical plan for moving here.

Many people who search for this topic have never lived in Australia, or have lived here only for short periods. They may hold two passports. Their partner may be from a third country. They may already have children who were born overseas. Each of those facts changes how the application should be prepared, even though none of them stops a citizen by descent partner visa sponsor from sponsoring. This guide explains the law, the documents, the choice between the offshore and onshore pathways, and the issues that most often cause delay. For an overview of every partner visa subclass, see the firm's complete guide to partner visas in Australia.

Can a citizen by descent sponsor a partner visa?

Yes, a citizen by descent can sponsor a partner visa, because a person who holds Australian citizenship by descent is an Australian citizen, and the partner visa criteria allow any Australian citizen who has turned 18 to sponsor their spouse or de facto partner. The sponsorship provisions do not distinguish between citizens by birth, by conferral or by descent.

The partner visa applicant must be the spouse or de facto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (clauses 820.211(2) and 309.211(2) of Schedule 2 to the Migration Regulations 1994). Where that spouse or de facto partner has turned 18, the sponsor is that person (paragraph 820.211(2)(c) and clause 309.213). A citizen by descent partner visa sponsor therefore meets the status part of the test as soon as their citizenship has been approved. The firm's FAQ on who can sponsor a partner visa sets out the general gateway rules.

The questions that actually decide these cases are different. Can the citizen by descent partner visa sponsor prove the citizenship clearly? Where will the couple live, and does the evidence show that plan? Which visa should the partner apply for, and from where? Are there children, and what is their status? Has the sponsor sponsored anyone before? The rest of this guide answers those questions in order. The firm's partner visa lawyers page describes the full range of partner visa work the firm does.

When the sponsor's own citizenship is still being processed

A person who has applied for citizenship by descent but has not yet been approved is not yet an Australian citizen. Until approval, that person cannot be a citizen by descent partner visa sponsor. If the person holds no other qualifying status, the partner visa should not be lodged on the assumption that approval will arrive in time. The safer course is to wait for the approval and the evidence of it, and then prepare the sponsorship.

What is Australian citizenship by descent?

Australian citizenship by descent is citizenship that a person born outside Australia can obtain by application, because a parent was an Australian citizen at the time of the person's birth (section 16 of the Australian Citizenship Act 2007). It is not automatic. The person, or a parent on behalf of a child, must apply, and the person becomes a citizen only when the application is approved.

Section 16(2) sets out the main eligibility rules for a person born outside Australia on or after 26 January 1949. In summary:

• a parent of the person was an Australian citizen at the time of the person's birth;
• where that parent was themselves a citizen by descent (or held citizenship under certain other listed provisions), the parent must have been present in Australia, other than as an unlawful non-citizen, for a period or periods totalling at least 2 years at any time before the application was made, unless the person has never been a national or citizen of any country; and
• where the person is 18 or over and is or has been a national or citizen of another country, the Minister must be satisfied that the person is of good character.

Once approved, the person receives evidence of Australian citizenship, usually a citizenship certificate. From that point the person is an Australian citizen with the same status as any other citizen for sponsorship purposes. A citizen by descent partner visa sponsor does not hold a lesser or provisional citizenship.

A common misunderstanding about "descent"

Some sponsors believe that because they became citizens by descent, they must first "activate" their citizenship by living in Australia before they can sponsor. That is not correct for the partner visa. The 2 year presence rule in section 16(2) is about the parent of a person applying for citizenship by descent. It is not a condition on a citizen by descent partner visa sponsor's right to sponsor a partner. It does become important when the sponsor's own children apply for citizenship by descent, which is explained later in this guide.

How does a citizen by descent partner visa sponsor prove citizenship?

A citizen by descent partner visa sponsor proves citizenship by providing the citizenship certificate issued when citizenship by descent was approved, or a current Australian passport, and ideally both. A foreign birth certificate showing an Australian parent does not, on its own, prove that the sponsor is an Australian citizen, because citizenship by descent depends on an approved application.

The firm's FAQ on how to prove your sponsor is an Australian citizen explains the general position for every kind of citizen. For a citizen by descent partner visa sponsor, the points below matter most.

The citizenship certificate

The citizenship certificate is the primary evidence that citizenship by descent was approved. It records the person's name and the date on which they became a citizen. If the certificate has been lost or damaged, the sponsor can apply to the Department for evidence of Australian citizenship. That takes time, so it should be started well before the partner visa is lodged. A sponsor who acquired citizenship by descent many years ago, particularly as a child, may hold an older form of document. Older documents should be checked to confirm that they show citizenship, not only the registration of a birth.

The Australian passport

An Australian passport is strong evidence of citizenship and identity together. Many sponsors who live overseas hold an Australian passport but travel mainly on their other passport. The Australian passport should still be current when the couple plans to travel to Australia. The firm's article on a partner visa change of passport explains what to do when passport details change during processing.

Name changes and different spellings

Almost every citizen by descent partner visa sponsor holds documents from two or more countries. The name on the citizenship certificate may differ from the name on a foreign passport, a marriage certificate or a birth certificate. Names may be spelled differently, written in a different order, or changed on marriage. A citizen by descent partner visa sponsor should provide the documents that link each version of the name, such as a marriage certificate, a change of name certificate or a divorce order, and a short written explanation where needed. The FAQ on documents that show different names or dates of birth explains how inconsistencies are handled.

Foreign documents and translations

Documents that are not in English must be translated into English. This includes birth certificates, marriage certificates and police certificates from the other country. The firm's guide to partner visa evidence translation and the FAQ on translating a marriage certificate for a marriage visa set out how translations should be prepared. The general list of sponsor documents for a partner visa is also useful.

Can a sponsor who has never lived in Australia sponsor a partner?

Yes, a sponsor who has never lived in Australia can sponsor a partner, because the partner visa criteria do not require an Australian citizen sponsor to be usually resident in Australia. The "usually resident" element appears in the definition of an Australian permanent resident in reg 1.03. It is not part of the test for a citizen.

This is one of the most important points for a citizen by descent partner visa sponsor, and it is often misunderstood. Some couples delay for years because they believe the sponsor must first move to Australia, find work and establish a home. The law does not require that. The firm's FAQ on whether an Australian living overseas can sponsor a partner explains the position for all Australians abroad.

Why the plan to live in Australia still matters

The absence of a residence requirement does not mean that where the couple lives is irrelevant. A partner visa is a visa to live in Australia. The Department assesses whether the couple has a mutual commitment to a shared life as spouses or de facto partners to the exclusion of all others, and whether the relationship is genuine and continuing. Where the citizen by descent partner visa sponsor has no history in Australia, the decision maker will naturally want to understand why the couple is moving and how they will live once they arrive.

That evidence is practical. It may include the sponsor's job applications or job offer in Australia, a transfer within an employer, enquiries about schools, a lease or accommodation arrangement, family members in Australia, and the steps taken to close down life in the other country. None of these is a legal requirement in itself. Together they show a credible plan. The firm's article on future plans in a partner visa relationship statement explains how the couple's own account of their plans should be presented.

The undertaking

A citizen by descent partner visa sponsor signs the same sponsorship undertaking as every other sponsor. The sponsor undertakes to provide adequate accommodation and financial assistance as required to meet the applicant's reasonable living needs for up to two years. There is no minimum income test for partner sponsors, as the FAQ on whether a sponsor needs a minimum income for a partner visa explains. A sponsor who is relocating with no job yet arranged can still give the undertaking, but should be able to explain how the household will be supported in the first period after arrival.

Subclass 309 or Subclass 820 for a citizen by descent partner visa sponsor

The choice for a citizen by descent partner visa sponsor is usually between the offshore Subclass 309, lodged while the partner is outside Australia, and moving to Australia first so that the partner can lodge the onshore Subclass 820 in Australia. Both lead to permanent residence through a second stage. They differ in where the partner must be at lodgement, what visa the partner holds while waiting, and what risks arise along the way.

For a citizen by descent partner visa sponsor, the firm's comparison of the Subclass 820 and Subclass 309 partner visas, its FAQ on which Australian partner visa to apply for, and its article on onshore vs offshore partner visas explain the general differences. The points below are specific to a sponsor who is a citizen by descent and who often lives overseas with the partner.

The offshore pathway: Subclass 309 then Subclass 100

The Subclass 309 visa is lodged while the applicant is outside Australia. It is the natural pathway for a citizen by descent partner visa sponsor who lives together with the partner overseas and wants to move to Australia once the visa is granted. The citizen by descent partner visa sponsor lodges the sponsorship online, linked to the partner's application, from wherever the sponsor lives.

Under amendments that commenced on 25 November 2023, a Subclass 309 applicant may be in or outside Australia, but not in immigration clearance, when the visa is granted. That gives more flexibility than many couples expect. However, there is no bridging visa on the offshore pathway. A pending Subclass 309 application gives the partner no right to enter or stay in Australia. If the partner wants to visit during processing, a separate visa is needed. The FAQ on whether you can visit Australia while a Subclass 309 is being processed and the article on visiting Australia during partner visa processing explain the issues.

Once the Subclass 309 is granted, the grant notice states a date by which the holder must first enter Australia. The firm's guide to the partner visa first entry deadline explains what to do if travel is delayed. The Subclass 100 permanent stage follows, as described in the article on the partner visa two-stage process. For more detail on the offshore route, see the firm's guide to the offshore partner visa in Australia and its article on offshore partner visa lodgement mistakes.

The onshore pathway: Subclass 820 then Subclass 801

The Subclass 820 visa is lodged while the applicant is in Australia. Where it is validly lodged while the applicant holds a substantive visa, the applicant is usually granted a Bridging visa A, which allows them to remain in Australia while the application is processed. For a citizen by descent partner visa sponsor who wants to live with the partner in Australia immediately, that can be attractive.

The risk is in how the partner gets to Australia and what visa they hold on arrival. If the partner enters on a visitor visa with a "no further stay" condition, such as condition 8503, the partner generally cannot lodge a Subclass 820 in Australia unless that condition is waived. If the partner's visa expires before lodgement, the Schedule 3 criteria apply and must be addressed. The firm's articles on the 8503 no further stay condition and the Subclass 820, on moving from a tourist visa to a partner visa, and on Schedule 3 criteria for applicants who are unlawful explain these risks. The firm's Schedule 3 waiver page describes that work.

A citizen by descent partner visa sponsor who plans to move with the partner and lodge onshore should therefore decide the pathway before anyone books a flight. The order of travel matters. Our FAQ on whether you can change from a Subclass 309 application to a Subclass 820 explains why the choice is difficult to undo.

How to choose between them

There is no single right answer for a citizen by descent partner visa sponsor, and the decision should be made on the couple's actual circumstances. The offshore Subclass 309 suits couples who are settled overseas, have work and housing there, and can wait for the visa before moving. The onshore Subclass 820 suits couples who need to be in Australia sooner and whose partner can lawfully enter on a visa that permits a Subclass 820 application. Processing differences are explained, without promises, in the FAQ on whether an onshore partner visa is faster than an offshore partner visa.

Moving to Australia with a citizen by descent partner visa sponsor

Moving to Australia together is smoother when the citizen by descent partner visa sponsor and the partner agree the order of travel, the partner's visa and the date the partner visa will be lodged before either of them leaves their current home. Most problems in these cases come from moving first and planning the visa afterwards.

The sponsor relocating first

A citizen by descent partner visa sponsor will sometimes move to Australia ahead of the partner to find work and housing. That is lawful and common. The sponsor enters Australia as an Australian citizen. Department guidance is that Australian citizens should use an Australian passport to enter and leave Australia, so the sponsor's Australian passport should be ready before travel. While the sponsor is in Australia and the partner remains overseas, the couple is temporarily living apart. That is not fatal, but the reason for the separation and the plan to reunite should be clear. The firm's articles on a partner visa long-distance relationship and on living apart for work explain how temporary separation is assessed.

The partner entering on another visa

Where the partner travels to Australia on a visitor visa while the couple decides which pathway to use, the partner must answer the visitor visa questions truthfully, including questions about the relationship. The FAQ on whether you should mention your partner on a visitor visa application and the FAQ on whether you can bring your spouse to Australia on a visitor visa address this. The firm's article on applying for a partner visa while on a tourist visa explains when an onshore application is possible.

The sponsor staying overseas during processing

Sometimes the partner lodges a Subclass 820 in Australia and the citizen by descent partner visa sponsor returns overseas for a period, for example to finish a work contract. That can be managed, but it needs explanation and evidence. The FAQ on whether a sponsor can live overseas while a Subclass 820 is processed explains the risks. A partner on a Bridging visa A who wants to travel needs a Bridging visa B before leaving Australia.

What relationship evidence suits a sponsor who lives overseas?

The relationship evidence for a citizen by descent partner visa sponsor who lives overseas is assessed under the same four aspects as every other case: the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the commitment to each other (reg 1.15A for spouses and reg 1.09A for de facto partners). The difference is that most of the evidence comes from another country.

A couple who has lived together overseas will usually have leases, utility accounts, joint bank accounts, tax records, children's school records and family documents from that country. Those documents count for a citizen by descent partner visa sponsor just as Australian documents would. Time living together overseas also counts towards the 12 month de facto relationship requirement, as the FAQ on whether living together overseas counts towards the 12 months explains. Where the couple married overseas, the FAQ on whether an overseas marriage is recognised for an Australian partner visa and the article is an overseas marriage recognised in Australia are relevant.

Social evidence is often the thinnest part of a citizen by descent partner visa sponsor file, because the couple's friends and family may all live overseas. Supporting witnesses can still make Form 888 statements if they are Australian citizens or permanent residents, and the FAQ on whether overseas friends can write statements for a partner visa explains the options. The firm's guide to Form 888 for a partner visa, its guide to partner visa relationship evidence, and its articles on household evidence and financial evidence cover each aspect in more depth. The couple's own account appears in one relationship statement, discussed in the guide to the partner visa relationship statement.

What Tribunal decisions show about sponsors living overseas

Tribunal decisions show that couples living in different countries can still satisfy the relationship criteria where the evidence is complete. In Singh (Migration) [2018] AATA 5925, a Subclass 309 matter, the headnote records that the sponsor financially supported the applicant and that the couple had lived in separate countries for the past 10 years. The matter was remitted to the Department. In HOANG (Migration) [2020] AATA 2156, also a Subclass 309 matter, the headnote records the sponsor's extensive visits to the applicant, and the matter was remitted. These decisions are not results achieved by My Migration Lawyers, and each turned on its own facts. They illustrate that support, visits and contact across borders are matters the Tribunal weighs, which is directly relevant to a citizen by descent partner visa sponsor who lives apart from the partner for a time.

Dual nationality documents for a citizen by descent partner visa sponsor

A citizen by descent partner visa sponsor usually holds a second nationality, and that means the sponsorship file will contain identity, civil and police documents from the other country as well as Australian ones. Australian law does not require a citizen by descent to give up another nationality. The other country's law may treat dual nationality differently, and that is a question for the sponsor under that country's law, not a partner visa criterion.

For the partner visa, the practical issue for a citizen by descent partner visa sponsor is consistency. The sponsor's name, date of birth, place of birth, previous relationships and addresses should match across the sponsorship, the applicant's forms, the relationship statement and any Form 80. The firm's article on Form 80 for a partner visa explains when that form is required. Where a civil document cannot be obtained from the other country, the FAQ on what to do if you cannot get a birth or marriage certificate is relevant.

Police certificates where children are included

Where an applicant under 18 is included in a Subclass 300, 309 or 820 application, the sponsor must provide police checks. The sponsor must provide a "Complete Disclosure" Australian National Police Check if the sponsor has spent 12 months or more in Australia since turning 16. The sponsor must also provide a police certificate from each other country where the sponsor has spent 12 months or more in total in the last 10 years since turning 16. A "Standard Disclosure" certificate is not acceptable.

For a citizen by descent partner visa sponsor who has never lived in Australia, the Australian check may not be required at all, but a certificate from each country of residence will be. A sponsor who has lived in several countries may need several certificates. The firm's guides to partner visa overseas police certificates and the partner visa AFP police check, and the FAQs on whether you need a police check for a partner visa and what to do if you cannot get a police certificate, explain the process. In Kim (Migration) [2020] AATA 2827, a Subclass 820 matter, the headnote records that a National Police Clearance from the AFP and a records check from the Korean National Police Agency were provided. Certificates from both countries were part of that file.

Children born overseas and citizenship by descent

Children born overseas to a citizen by descent partner visa sponsor are not automatically Australian citizens, and whether they can obtain citizenship by descent through that parent depends on whether the parent has been lawfully present in Australia for a total of at least 2 years before the child's application. This is the point that most often surprises families in this situation.

Under section 16(2) of the Australian Citizenship Act 2007, where the Australian parent is a citizen by descent, the parent must have been present in Australia, other than as an unlawful non-citizen, for a period or periods totalling at least 2 years at any time before the child's application is made. A citizen by descent partner visa sponsor who has never lived in Australia, or who has lived here for less than 2 years in total, will usually not meet that condition yet. The limited exception for a child who has never been a national or citizen of any country rarely applies to these families.

What this means for the partner visa

Where the children of a citizen by descent partner visa sponsor cannot yet obtain citizenship by descent, they need a visa to live in Australia. In most cases they should be included in the partner visa application as dependent children of the applicant. The firm's guide to adding children to a partner visa and the FAQ on whether you can include your children in a partner visa application explain how that works. Where a child has another parent outside the relationship, the FAQ on the other parent's consent for a child to migrate is relevant. Including a child under 18 also triggers the sponsor police check rules described above.

Where a child is eligible for citizenship by descent, because the citizen by descent partner visa sponsor has spent the required time in Australia, the family should consider whether to apply for the child's citizenship before travel. A child who becomes an Australian citizen does not need a visa and is not included as an applicant. Until that citizenship is approved, however, the child is not a citizen. The firm's FAQ on whether a baby is automatically an Australian citizen explains the birth and descent rules, and the FAQ on adding a newborn to a partner visa application covers a child born during processing.

In Cabezas (Migration) [2024] AATA 2792, a Subclass 820 matter that was remitted to the Department, the headnote records a child's Australian citizenship by descent and joint care for the children. The decision is cited here only to show that a child's citizenship by descent can feature in the facts of a partner visa review. The firm's article on partner visa compelling reasons and Australian citizen children discusses citizen children in the Schedule 3 context.

Do the usual sponsor checks still apply to a citizen by descent?

Yes, every usual sponsor check applies to a citizen by descent partner visa sponsor, because citizenship by descent gives the same status as any other citizenship, with the same obligations. The sponsorship must be approved and remain in force at the time of decision (820.221(4) and 309.222(1)).

The main checks for a citizen by descent partner visa sponsor are summarised here only. The sponsorship limitations in reg 1.20J generally allow no more than two approved partner sponsorships in a lifetime and require a 5 year gap in certain cases, subject to a waiver for compelling circumstances. The firm's article on when a sponsor cannot sponsor a partner visa, its sponsorship limitations page and the FAQ on whether a lawyer can help if the sponsor has sponsored a partner before explain these rules. For a citizen by descent partner visa sponsor with children, reg 1.20KB applies where an applicant under 18 is included, and reg 1.20KC allows refusal where the sponsor has a conviction for a relevant offence and a significant criminal record. The FAQ on whether you can get a partner visa if your sponsor has a criminal record explains the character rules. The sponsor must also consent to the Department disclosing any conviction for a relevant offence to each applicant included in the sponsorship.

Common mistakes in citizen by descent sponsor cases

The most common mistakes in a citizen by descent partner visa sponsor case are evidence and timing mistakes, not eligibility problems. Each of the mistakes below can be avoided with planning.

• Treating a foreign birth certificate as proof of citizenship. A birth certificate showing an Australian parent does not prove that citizenship by descent was approved. The citizenship certificate or an Australian passport should be provided.
• Lodging before the sponsor's own citizenship is approved. A citizen by descent partner visa sponsor must already be a citizen. A person whose citizenship by descent application is still pending is not yet a citizen.
• Believing the sponsor must live in Australia first. A citizen by descent partner visa sponsor does not need to relocate before lodging. There is no "usually resident" element for an Australian citizen sponsor, so years of delay may be unnecessary.
• Ignoring the plan to live in Australia. The opposite mistake is lodging with no evidence of how and when the couple will move. A citizen by descent partner visa sponsor with no Australian history should show a credible plan.
• Moving first and choosing the visa later. A partner who enters on a visitor visa with condition 8503 may lose the ability to lodge a Subclass 820 in Australia.
• Assuming the children are Australian citizens. Children of a citizen by descent partner visa sponsor born overseas are not automatically citizens, and the 2 year presence rule often prevents citizenship by descent for them.
• Leaving out name-linking documents. Two passports and two naming systems create inconsistencies that should be explained at lodgement, not after a request from the Department.
• Forgetting police certificates from the other country. Where a child under 18 is included, certificates from each country of 12 months or more in the last 10 years since turning 16 are required.

A related article on partner visa missing documents explains how to deal with documents that genuinely cannot be obtained, and the partner visa document checklist sets out the general list. If an application has already been refused, the firm's partner visa refusals page explains review. An application for review must be made within 28 days after the day the decision is notified, and that time limit cannot be extended. The FAQ on who must apply for review of an offshore spouse visa refusal explains who lodges the review in an offshore case.

How My Migration Lawyers helps a citizen by descent partner visa sponsor

My Migration Lawyers helps a citizen by descent partner visa sponsor by planning the whole move to Australia around the partner visa, so that the citizenship evidence, the choice of pathway, the children's status and the relationship evidence are settled before anything is lodged. These matters often involve two or three countries, two sets of names and several family members. The firm regularly acts in cross-border partner visa matters of exactly this type, including for sponsors who have never lived in Australia, and is well equipped to handle their complexity.

The work is led by Weiwei Zhang, Principal Lawyer. On a citizen by descent partner visa sponsor matter, the firm typically does the following.

• Confirms the sponsor's status. The firm confirms that the client qualifies as a citizen by descent partner visa sponsor. It checks the citizenship certificate and passport, identifies any gaps in the evidence of citizenship by descent, and maps every version of the sponsor's name across both countries.
• Chooses the pathway with the couple. The firm advises on the offshore Subclass 309 or the onshore Subclass 820 based on where the couple lives, the partner's current visa, and the planned date of the move, before anyone travels.
• Works out the children's position. The firm considers whether each child can apply for citizenship by descent, given the sponsor's time in Australia, or should be included in the partner visa application, and what consents and police certificates follow.
• Presents the couple's own evidence. The firm reviews the couple's documents from overseas, identifies what is missing, and presents the couple's own account and evidence in the form the law requires, including the relationship statement and Form 888 statements.
• Prepares the sponsorship. The firm prepares the sponsorship, checks the sponsorship limitations and character questions, and makes sure the sponsor's declarations are accurate and consistent with the applicant's forms.
• Stays with the matter. The firm responds to requests from the Department, reports changes of circumstances, and manages the second stage.

The firm works by video and email with clients in Australia and overseas, which suits a citizen by descent partner visa sponsor who has not yet moved. You can learn more about My Migration Lawyers, the firm's guide to an offshore partner visa lawyer, its article on complex partner visa matters, and its FAQ on whether a lawyer can help an Australian citizen sponsor their partner. Once the family has settled in Australia, the firm also acts for clients of its partner visa lawyers in Sydney, Melbourne, Brisbane, Perth and Adelaide. The firm's office is at Level 1, 60 Martin Place, Sydney NSW 2000, and you can also contact My Migration Lawyers in writing. More questions are answered in the partner visa FAQ centre.

Every citizen by descent partner visa sponsor matter is different, and no lawyer can promise an outcome. What My Migration Lawyers can do is make sure the sponsor's citizenship is proved clearly, the right pathway is chosen before the move, and the Department sees a complete and consistent application.

Book a consultation with My Migration Lawyers to plan your sponsorship as a citizen by descent. You can also call us on 1300 040 300.