Onshore vs Offshore Partner Visa

The onshore vs offshore partner visa question is the first decision every couple faces when an Australian citizen, permanent resident or eligible New Zealand citizen wants to bring their partner to live in Australia. In the law, an onshore vs offshore partner visa choice is a choice between two different visa streams: the Subclass 820 and Subclass 801 application made inside Australia, and the Subclass 309 and Subclass 100 application made while the applicant is outside Australia. The relationship test is the same. Almost everything else is different.

This guide compares the two pathways so that couples, and especially the Australian partner, can work out which one is open to them and which one suits their circumstances. It covers where the applicant must be at lodgement and at grant, who can lodge onshore, bridging visas and work rights, travel during processing, visiting Australia while a Subclass 309 is processed, the shared two-stage structure, evidence, review rights after a refusal, and switching between pathways. If you want a full overview of every partner visa first, our complete guide to partner visas in Australia explains each subclass. If you already know your situation is complicated, our partner visa lawyers can check it before you lodge.

Onshore vs offshore partner visa: the short answer

The onshore partner visa is for an applicant who is in Australia when the application is made, and the offshore partner visa is for an applicant who is outside Australia when the application is made. The onshore application is a combined application for the temporary Subclass 820 visa and the permanent Subclass 801 visa. The offshore application is a combined application for the provisional Subclass 309 visa and the permanent Subclass 100 visa.

On the onshore vs offshore partner visa question, the key differences are these:

• Where the applicant must be when the application is made and when each visa is granted.
• Whether the applicant is allowed to lodge in Australia at all, given their current visa and history.
• How the applicant lives while waiting: on a bridging visa in Australia, or in another country.
• How travel works during processing.
• Who can seek review if the visa is refused, and from where.

The relationship requirements, the sponsorship by the Australian partner, the public interest criteria such as health and character, and the two-stage structure are broadly the same in both pathways. Couples sometimes assume that one pathway is "easier" on the relationship. It is not. The onshore vs offshore partner visa difference lies in location, lawful status and process, not in the standard of proof about the relationship.

What the onshore partner visa is: Subclass 820 and Subclass 801

The onshore partner visa is a combined application for a Subclass 820 temporary partner visa and a Subclass 801 permanent partner visa, made while the applicant is in Australia. Paragraph 1214C(3)(a) of Schedule 1 to the Migration Regulations 1994 requires the Subclass 820 application to be made at the same time and place as the Subclass 801 application. The couple lodges once, and the Department decides the two stages at different times.

The applicant must be in Australia, but not in immigration clearance, when the application is made. That requirement is in paragraph 1214C(3)(c). The applicant must also be in Australia, and not in immigration clearance, when the Subclass 820 visa is granted. That requirement is in clause 820.411. If the applicant is outside Australia at the moment the Department is ready to decide, the Subclass 820 cannot be granted.

Our article on the Subclass 820 visa as the onshore partner visa explains the temporary stage in detail, and our Subclass 820 partner visa guide covers the requirements at each stage. Our service page for the Subclass 820 visa explains how we act on onshore applications.

What the offshore partner visa is: Subclass 309 and Subclass 100

The offshore partner visa is a combined application for a Subclass 309 provisional partner visa and a Subclass 100 permanent partner visa, made while the applicant is outside Australia. Paragraph 1220A(3)(b) of Schedule 1 requires every applicant for a Subclass 309 visa to be outside Australia when the application is made. Paragraph 1220A(3)(c) requires the Subclass 309 application to be made at the same time and place as the Subclass 100 application.

Subclause 309.412(1) requires the applicant to be outside Australia when the Subclass 309 visa is granted. There is a limited exception in subclause 309.412(2) for certain applicants who were in Australia during the COVID-19 concession period, but for most couples applying now the rule is simple: the applicant must be outside Australia at the moment of grant.

Many Australian partners read "offshore" and think the application has to be lodged from overseas in some physical sense. That is not how it works. The application is lodged online through ImmiAccount. What matters is where the applicant is physically located on the day the application is made, and again on the day the Subclass 309 is granted. Our page on the Subclass 309 offshore partner visa explains how we act for couples in this pathway, and our guide to creating an ImmiAccount explains the online account itself.

Where the applicant must be: the core onshore vs offshore partner visa rule

The core onshore vs offshore partner visa rule is location: the onshore applicant must be in Australia at lodgement and at the Subclass 820 grant, and the offshore applicant must be outside Australia at lodgement and at the Subclass 309 grant. The permanent stages are more flexible.

• At lodgement: the onshore applicant must be in Australia, not in immigration clearance (paragraph 1214C(3)(c)); the offshore applicant must be outside Australia (paragraph 1220A(3)(b)).
• At the temporary visa grant: the Subclass 820 applicant must be in Australia, not in immigration clearance (clause 820.411); the Subclass 309 applicant must be outside Australia, subject to a limited concession (clause 309.412).
• At the permanent visa grant: the Subclass 801 applicant may be in or outside Australia, but not in immigration clearance (clause 801.411); the Subclass 100 applicant may also be in or outside Australia, but not in immigration clearance (clause 100.411).

Two practical consequences follow. First, an onshore applicant who travels during processing must plan to be back in Australia before the Subclass 820 decision. Second, an offshore applicant who visits Australia during processing must plan to leave before the Subclass 309 decision. The Department generally will not wait indefinitely. The onshore vs offshore partner visa choice therefore has a direct effect on how and when the applicant can move between countries.

Once the temporary visa is held, both sides of the onshore vs offshore partner visa structure allow the permanent visa to be granted whether the applicant is in or outside Australia. Even so, location still matters at the permanent stage, because it affects review rights if the permanent visa is refused. That issue is explained later in this guide.

Who can apply onshore? Eligibility in the onshore vs offshore partner visa decision

Being physically in Australia is necessary for an onshore application, but it is not enough. A person in Australia can only lodge onshore if their current visa, its conditions and their immigration history allow a valid application to be made. Most of the onshore vs offshore partner visa decisions that go wrong go wrong here.

Applicants who hold a substantive visa with no "no further stay" condition

An applicant who holds a substantive visa, such as a visitor, student, working holiday or skilled visa, without a "no further stay" condition can generally lodge an onshore partner visa application. This is the cleanest onshore position. The applicant is lawful, is usually eligible for a Bridging visa A, and does not face Schedule 3.

A substantive visa is defined in subsection 5(1) of the Migration Act 1958 as a visa other than a bridging visa, a criminal justice visa or an enforcement visa. A person holding only a bridging visa from an earlier application does not hold a substantive visa, even if they are lawful.

There are some special restrictions. Under paragraphs 1214C(3)(g) and (h), holders of certain skilled regional provisional visas, or people whose last substantive visa was one of those visas, must have held that visa for a minimum period before they can lodge a Subclass 820 application. Anyone on a regional skilled visa should have this checked before lodging.

Conditions 8503, 8534 and 8535

Condition 8503, condition 8534 and condition 8535 are "no further stay" conditions that stop the visa holder making most visa applications while they remain in Australia. The Department's policy states that a visa holder with condition 8503 cannot validly apply for another substantive visa, other than a protection visa, until the condition has been waived. Condition 8534 and condition 8535 operate in the same way and are found on certain other temporary visas, including some student visas. Under subsection 46(1A) of the Migration Act, a person in Australia who holds, or has held since last entering Australia, a visa with one of these conditions cannot make a valid application for a partner visa unless the condition has been waived. The bar continues even after the visa with the condition has ceased, for as long as the person stays in Australia.

Condition 8503 is common on visitor visas, which is why it appears so often in onshore vs offshore partner visa advice. It is mandatory for some Subclass 600 visitor visa streams, including the Sponsored Family stream, and can be imposed in others. The waiver is not automatic. It is decided under regulation 2.05 of the Migration Regulations, on the basis of compelling and compassionate circumstances that have developed since the visa was granted and that the person had no control over. A decision not to waive the condition cannot be reviewed by the Administrative Review Tribunal.

On the onshore vs offshore partner visa question, condition 8503 is often the deciding factor. If the condition cannot be waived, the onshore pathway is closed while that visa is held, and the offshore pathway may be the only option. Our article on whether you can apply for a Subclass 820 visa with condition 8503 explains this in detail, and our guide to moving from a tourist visa to a partner visa in Australia explains what visitors should check first.

The section 48 bar

Section 48 of the Migration Act limits the visas a person can apply for in Australia if they do not hold a substantive visa and have had a visa refused or cancelled since they last entered Australia. Regulation 2.12 lists the classes that can still be applied for. Partner (Temporary) (Class UK), which contains the Subclass 820, and Partner (Residence) (Class BS), which contains the Subclass 801, are on that list.

So, on the onshore vs offshore partner visa question, the section 48 bar does not by itself stop an onshore partner visa. However, paragraph 1124B(3)(e) adds extra requirements for people affected by section 48. One of them is that a person to whom section 48 applies cannot make a valid onshore partner application if they have already had a partner visa refused since they last entered Australia. A person who leaves and returns on a bridging visa is treated as having stayed in Australia for this purpose. Our article on applying for a partner visa after a visa refusal explains how the section 48 bar works in practice.

Applicants without a substantive visa: Schedule 3

An applicant who does not hold a substantive visa when they lodge an onshore application must satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Department is satisfied that there are compelling reasons for not applying those criteria. This is in subparagraph 820.211(2)(d)(ii). It applies to people who hold only a bridging visa and to people who are unlawful.

Criterion 3001 is generally met if the application is lodged within 28 days after the applicant last held a substantive visa. Criteria 3003 and 3004 deal with the reasons the applicant became unlawful and whether they have complied with their visa conditions. Where the criteria cannot be met, the applicant must show compelling reasons for a waiver. Our guides to the Schedule 3 criteria for applicants who are unlawful and the Schedule 3 partner visa waiver explain each criterion, and our Schedule 3 waivers service acts in these matters.

What the Department's policy says about Schedule 3 and the offshore option

The Department's policy is direct about the link between Schedule 3 and the onshore vs offshore partner visa choice. It says the waiver provisions are not intended to give an advantage to people who can leave Australia and apply for a partner visa outside Australia. It also says that, as a general rule, a genuine relationship and the hardship of separation if the applicant had to apply offshore are not compelling reasons in themselves, because a genuine relationship is the basis of every partner visa and separation is common in the offshore caseload.

The same policy recognises that an Australian citizen child with a demonstrable link to the applicant may support a waiver in the best interests of the child. It lists factors such as the applicant's history of compliance, how long they have been unlawful, why they became unlawful, why they did not regularise their status sooner, and their current family composition. The Full Federal Court in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 held that all of the applicant's circumstances, as known up to the time of decision, must be considered.

This is one of the most misunderstood parts of the onshore vs offshore partner visa decision. Many couples believe a strong relationship will carry an unlawful applicant through Schedule 3. Department policy says otherwise. The evidence has to show something more.

Tribunal decisions in which partner visa refusals were remitted to the Department show how these issues are argued. In Sandhu (Migration) [2018] AATA 1483, a Subclass 820 matter, the issues recorded were whether compelling reasons existed for not applying the Schedule 3 criteria, the length of the relationship, and the difficulty of relocating offshore while an application was processed. In Bedi (Migration) [2020] AATA 5208, the application had been made more than 28 days after the last substantive visa was held, and the recorded issues were compelling reasons for not applying the criteria and an Australian citizen child of the relationship. Each case turns on its own evidence, and neither decision sets a rule for other couples.

Is the onshore partner visa available to someone in Australia unlawfully?

Yes, an onshore application can be made by a person who is in Australia unlawfully, but only if Schedule 3 is satisfied or waived, and the risks are significant. An unlawful person is liable to be detained and removed. They will generally not receive a Bridging visa A with the application. The Department's policy tells decision makers that the waiver should not be used where it is reasonable to expect the applicant to leave and apply offshore.

For an unlawful applicant, the onshore vs offshore partner visa comparison is therefore not a comparison of two equal options. The onshore route may be available on paper, but its success depends on the strength of the compelling reasons. The offshore route requires the applicant to depart, which can bring its own consequences, including exclusion periods and public interest criteria that look at how and when the person left. Our Schedule 3 partner visa waiver guide and our page on urgent immigration lawyer advice explain what to do first. Advice should be obtained before any step is taken, because both options carry risk.

Waiting for the decision: the onshore vs offshore partner visa experience

The biggest practical onshore vs offshore partner visa difference is where the applicant lives while the application is processed: an onshore applicant usually stays in Australia on a bridging visa, while an offshore applicant waits outside Australia. For many couples, this single point decides the matter.

The onshore applicant and the Bridging visa A

An onshore applicant who held a substantive visa when they lodged is generally eligible for a Bridging visa A. The online partner visa application is also an application for the Bridging visa A, so there is usually no separate form. Under paragraph 010.611(1)(c) and the legislative instrument made under it, Subclass 820 and Subclass 801 applicants receive their associated Bridging visa A with no conditions. That means no work restriction and no study restriction.

The Bridging visa A generally does not come into effect until the applicant's current substantive visa ceases. Until then, the old visa and its conditions keep applying. A visitor whose visa says "no work" cannot start work the day after lodging just because the partner visa is in. Our article on whether you can work while waiting for a Subclass 820 visa explains the timing.

Onshore applicants who receive a Bridging visa C or Bridging visa E

An onshore applicant who did not hold a substantive visa when they lodged usually receives a Bridging visa C, or remains on a Bridging visa E, and those visas usually carry condition 8101, which prohibits work. A further bridging visa without condition 8101 can sometimes be obtained by showing financial hardship. So the onshore side of the onshore vs offshore partner visa comparison does not always mean full work rights. It depends on the applicant's status on the day of lodgement. Our guide to bridging visas in Australia explains each class.

The offshore applicant: living outside Australia

An offshore applicant has no Australian bridging visa, because they are not in Australia and do not need one. They live, work and study under the law of the country where they are. Their life in Australia begins when the Subclass 309 is granted and they enter Australia on it. Clause 309.511 provides that the Subclass 309 permits the holder to travel to, enter and remain in Australia until the Subclass 100 application is decided or withdrawn.

For the Australian partner, the offshore pathway usually means either a period of living apart or the Australian partner spending time overseas. That is the real cost of the offshore route. The benefit is that the applicant's status in Australia is never in doubt while they wait, because they are not relying on a bridging visa at all.

Visiting Australia while a Subclass 309 is being processed: onshore vs offshore partner visa rules

An offshore applicant can usually visit Australia while the Subclass 309 is processed, if they obtain a visitor visa, but they must be outside Australia when the Subclass 309 is granted. The Subclass 309 application itself does not give any right to enter Australia. A separate visa, usually a visitor visa, is needed for each visit.

This is one of the most practical points in the onshore vs offshore partner visa comparison, and it is often handled badly. Three things need care.

First, the visitor visa is decided on its own criteria. A visitor visa applicant must intend a genuine temporary stay. A pending partner visa application is not a bar to a visitor visa, but it is a relevant fact, and the visitor application must be accurate about it.

Second, the visitor visa may carry condition 8503. If it does, the applicant cannot lodge an onshore partner application during the visit without a waiver. Couples who plan to visit on a visitor visa and then "switch to onshore" often find that the visitor visa granted to them does not allow it.

Third, the Subclass 309 cannot be granted while the applicant is in Australia under the standard rule in subclause 309.412(1). If the Department is ready to decide while the applicant is visiting, the applicant will need to leave Australia for the grant. The Department may contact the couple when a decision is near, and the applicant needs to be ready to depart.

Our guide to the Subclass 309 offshore partner visa explains these steps for Australian partners whose partners are overseas.

Travel during processing in an onshore vs offshore partner visa application

Travel during processing is restricted onshore and largely unrestricted offshore. That is a central onshore vs offshore partner visa trade-off for couples with family or work overseas.

Onshore: the Bridging visa B

An onshore applicant who wants to leave Australia and return while the application is processed needs a Bridging visa B. A Bridging visa A ceases if the holder leaves Australia, and the Department's policy notes that a Bridging visa A that has ceased this way cannot be brought back into effect. The Bridging visa B is granted on application, only to a person who already holds a Bridging visa A or Bridging visa B for the same application. Each Bridging visa B has a travel facility period, and the holder must return within it.

A person who holds a Bridging visa C or Bridging visa E is not eligible for a Bridging visa B. If they leave Australia, they generally cannot return on that bridging visa. For those applicants, travel during processing is usually not realistic without putting the whole application at risk.

There is a second onshore risk in the onshore vs offshore partner visa comparison. The Subclass 820 can only be granted while the applicant is in Australia. An applicant who is overseas when the Department is ready to decide must return before the visa can be granted.

Offshore: no bridging visa, no travel restriction from Australian law

An offshore applicant is not subject to any Australian bridging visa rule, so Australian law does not restrict their travel between other countries during processing. They can visit family, work in another country or travel with the Australian partner. The constraints are practical: they must keep the Department informed of their contact details, and they must be outside Australia at the moment of the Subclass 309 grant.

Changes of address, passport details or circumstances must be reported in both pathways. Our guide to Form 1022 for a change of circumstances explains how.

The two-stage structure common to both pathways

Both pathways have the same two-stage structure: a temporary visa first, then a permanent visa, with both stages applied for in one combined application. On the onshore vs offshore partner visa question, this is a point of similarity rather than difference.

In the onshore pathway, the first stage is the Subclass 820 and the second stage is the Subclass 801. In the offshore pathway, the first stage is the Subclass 309 and the second stage is the Subclass 100. In each case, the permanent stage is generally assessed once two years have passed since the combined application was made, and the relationship must still be genuine and continuing at that time. There are exceptions, for example where the relationship is already long-term at the time of application, or where the relationship has ended because the sponsor died or because of family violence.

The Subclass 801 is only available to a person who holds a Subclass 820 visa, and the Subclass 100 is only available to a person who holds a Subclass 309 visa, subject to narrow exceptions. A Subclass 309 holder cannot move across to the Subclass 801. Our article on Subclass 820 vs Subclass 801 explains how the two stages connect in the onshore stream.

Where the relationship ends after lodgement because of family violence, both pathways contain family violence provisions. The details differ between the subclasses. Our family violence partner visa lawyers act in these matters, and our article on what happens if the relationship breaks down during a Subclass 820 application explains the onshore position.

Are the relationship requirements the same onshore and offshore?

Yes. The relationship requirements are the same in both pathways: the applicant must be the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, as defined in sections 5F and 5CB of the Migration Act and regulations 1.15A and 1.09A of the Migration Regulations. The same tests for a genuine and continuing relationship apply to the onshore vs offshore partner visa streams alike.

The offshore pathway has one additional option. Subclause 309.211(3) allows an applicant who intends to marry the Australian partner to apply, provided the marriage takes place before the decision and is a valid marriage. Engaged couples who are not yet married or in a de facto relationship may also consider the Subclass 300 Prospective Marriage visa.

De facto relationships

A de facto applicant generally needs to show that the relationship existed for at least 12 months before the application, unless an exception applies, such as registration of the relationship. This requirement applies in both pathways. Our article on the de facto partner visa and the 12-month rule explains the exceptions, and our article on whether you need 12 months of de facto relationship for a Subclass 820 covers the onshore position.

Same-sex couples

Same-sex couples apply under exactly the same onshore vs offshore partner visa rules as any other couple. Our LGBTI partner visa page explains how we act for same-sex couples in both pathways.

Evidence in an onshore vs offshore partner visa application

The evidence a couple must provide is the same in substance in both pathways, and the Australian partner plays the same central role as sponsor. The decision maker looks at the four assessed aspects of the relationship: the financial aspects, the nature of the household, the social aspects and the nature of the commitment.

The four assessed aspects

Evidence of the financial aspects includes joint accounts, shared expenses and financial support. Evidence of the nature of the household includes where and how the couple live, and how they share household responsibilities. Evidence of the social aspects includes how the couple present to friends and family, and Form 888 statements from people who know them as a couple. Evidence of the nature of the commitment includes the history of the relationship, time spent together and plans for the future. Our guide to partner visa relationship evidence explains each aspect, and our guide to preparing evidence of a genuine relationship explains how to organise it.

There is one relationship statement from each partner. Our article on the partner visa relationship statement explains what it should cover. Our guides to Form 888 for partner visas and Form 888 example answers and common mistakes explain the supporting statements from friends and family.

How the evidence looks different offshore

The legal test is the same in every onshore vs offshore partner visa application, but the evidence often looks different in the offshore pathway. Couples applying offshore have often lived apart for periods. That is not fatal. The law recognises that a genuine relationship can continue during periods of separation, but the couple must show how they stayed in contact and remained committed while apart. Communication records, travel records and evidence of visits become important. Onshore couples, by contrast, are usually expected to show a shared household in Australia.

The Australian partner as sponsor

In both pathways, the Australian partner must be approved as sponsor, and the sponsorship must be in force at the time of decision. The sponsor completes the online sponsorship form, and sponsorship limitations apply in both streams. A person who has already sponsored partners in the past, or who was themselves granted a partner visa recently, may face restrictions. The sponsor may also need to consent to the disclosure of certain criminal convictions to the applicant. Our guides to when a sponsor cannot sponsor a partner visa and our sponsorship limitations service explain those rules.

For an offshore application, the Australian partner is usually the person who engages a lawyer, gathers most of the Australian evidence and manages the application. That is why this guide addresses the offshore side to the Australian partner. Our partner visa document checklist and our 820 partner visa evidence checklist set out what is usually needed. Our guide to Form 80 explains the personal particulars form that the Department may request.

Onshore vs offshore partner visa processing and family factors

Processing priority does not depend on which side of the onshore vs offshore partner visa choice the couple takes. Ministerial Direction 102, which governs the order in which family visa applications are considered, gives applications by spouses, de facto partners and prospective spouses equal highest priority after ministerial intervention cases. The Department's published processing times differ between the two streams and change over time, so couples should check the current guide rather than rely on a figure they read elsewhere. Our article on Subclass 820 processing times explains how to read it, and our article on how long the onshore partner visa takes covers what affects timing.

The Direction also allows decision makers to depart from the order of priority where there are compelling reasons involving special circumstances of a compassionate nature, such as serious illness of the applicant, the sponsor or a family member.

Children in an onshore vs offshore partner visa application

Dependent children can be included in both pathways, either in the combined application or, in some cases, added later. In the onshore pathway, regulation 2.08 adds a child born in Australia to the application by operation of law, and regulation 2.08B allows a dependent child to be added before the Subclass 820 is decided. Children included in an offshore application must meet the same location rules as the main applicant at grant. Where a child is overseas with a parent who is not travelling, custody and consent issues also arise in both pathways.

The onshore vs offshore partner visa choice also affects family logistics. An onshore family usually lives together in Australia during processing. An offshore family may be divided between countries until the Subclass 309 is granted.

Medicare and services in the onshore vs offshore partner visa comparison

Access to Medicare and other services is decided by Services Australia and other agencies, not by the Department of Home Affairs, and it differs between the two pathways. In general terms, an onshore applicant who has applied for a permanent partner visa may be able to enrol in Medicare while in Australia, subject to the rules that agency applies. An offshore applicant waiting outside Australia has no access to Australian services until they enter Australia on the Subclass 309. Once in Australia on that visa, the holder can apply to enrol on the basis of that visa.

Eligibility for social security payments is separate again and is subject to its own waiting periods. Couples should not assume that either pathway gives immediate access to payments. This is a practical rather than a legal difference in the onshore vs offshore partner visa comparison, but it affects family budgets during a long wait, particularly where a child is expected or a health need exists.

Review rights after a refusal: onshore vs offshore partner visa differences

Review rights after a refusal differ sharply between the two pathways: an onshore refusal is reviewed on the application of the applicant, who must be in Australia, while a Subclass 309 refusal made while the applicant is offshore is reviewed on the application of the Australian sponsor. This is one of the least understood parts of the onshore vs offshore partner visa comparison, and it matters most at the worst possible moment.

Onshore refusals

A refusal of a Subclass 820 and Subclass 801 application made in Australia is generally reviewable by the Administrative Review Tribunal under subsection 338(2) of the Migration Act. The applicant makes the review application, and under section 347A the applicant must be physically present in Australia when the review application is made. An applicant who travels overseas and is refused while away needs to return before they can seek review.

A valid and timely review application also keeps the applicant's bridging visa in effect while the Tribunal decides the matter. Review deadlines are short and strictly applied, and they run from notification of the decision. Our guide to ART review after a visa is refused explains the process, and our article on partner visa appeal options sets out what to do first.

Offshore refusals: the sponsor applies

On the offshore side of the onshore vs offshore partner visa comparison, a Subclass 309 refusal made while the applicant is outside Australia is reviewable under subsection 338(5) of the Migration Act. The review application is made by the Australian sponsor, not by the applicant. The sponsor can lodge it from inside or outside Australia. For the Australian partner, this means the review is in your hands. You are the review applicant, and you must act within the deadline stated in the refusal notice.

The permanent stage works differently. If a Subclass 309 holder is refused the Subclass 100 while outside Australia, there is no right to merits review of that refusal under the Migration Act. If the Subclass 309 holder is in Australia when the Subclass 100 is refused, review is available under subsection 338(7A), but only if the holder is in Australia when the decision is made and when the review application is lodged. A Subclass 309 holder whose permanent visa is being decided should therefore think carefully before spending long periods overseas.

Why review rights matter before lodgement

The onshore vs offshore partner visa choice should be made with review rights in view. Couples rarely think about refusal at the start, but the pathway decides who can seek review and from where. Our partner visa refusals service, our broader visa refusals service and our guide to choosing a visa appeal lawyer explain how we act once a decision has been made. Where a Tribunal decision itself contains a legal error, our judicial review service may be relevant.

Many refusals can be avoided earlier. Before refusing, the Department often asks for more information or puts adverse information to the applicant. Our guides to responding to a section 56 request and to a section 57 natural justice letter for a partner visa explain how to respond. Our articles on why partner visas get refused and the most common reasons for Subclass 820 refusals show what usually goes wrong.

Which pathway suits which situation?

The onshore pathway usually suits a couple where the applicant is already in Australia on a substantive visa without a "no further stay" condition, and the offshore pathway usually suits a couple where the applicant lives overseas or cannot lodge validly in Australia. The right onshore vs offshore partner visa decision depends on the facts, but some patterns are common.

Situations where onshore is usually the better fit

• The applicant holds a student, working holiday, skilled or other substantive visa without condition 8503, 8534 or 8535, and the couple lives together in Australia.
• The couple wants to stay together during processing, and the applicant needs to work in Australia on a Bridging visa A.
• The applicant holds a Subclass 300 Prospective Marriage visa, has married the sponsor, and is in Australia. Department policy expects that applicant to apply for the Subclass 820 and Subclass 801 in Australia. Our Subclass 300 visa page explains that pathway.

Situations where offshore is usually the better fit

• The applicant lives overseas and has no realistic way to enter Australia on a visa that allows an onshore application.
• The applicant is in Australia on a visitor visa with condition 8503, and there is no basis for a waiver.
• The applicant would need a Schedule 3 waiver to lodge onshore, and the circumstances do not show compelling reasons.
• The applicant needs to travel freely for work or family during processing.

Situations that need advice first

Some onshore vs offshore partner visa decisions cannot be made from a checklist. They include an applicant who is unlawful, an applicant affected by the section 48 bar, an applicant with a previous partner visa refusal, an applicant with character issues, a sponsor who has sponsored a partner before, and couples with children overseas. Partners of New Zealand citizens who are not eligible New Zealand citizens may need to consider a different visa, such as the Subclass 461 visa. Our article on whether you need an immigration lawyer for a partner visa and our comparison of a partner visa lawyer and doing it yourself explain when legal advice adds the most value.

Switching between onshore and offshore pathways

No, an onshore partner visa application cannot be converted into an offshore application, or the other way around. Each pathway is a separate visa class with its own validity rules. Switching means making a new application in the other pathway and, usually, withdrawing or abandoning the first one. That is why the onshore vs offshore partner visa choice should be made carefully the first time.

Moving from offshore to onshore

An applicant who has lodged a Subclass 309 application and then comes to Australia does not automatically become an onshore applicant. To lodge a Subclass 820 and Subclass 801 application, they must meet every onshore validity requirement on the day they lodge. If they entered on a visitor visa with condition 8503, they cannot lodge onshore without a waiver. If they lodge validly onshore, the couple must then decide what to do with the offshore application. The partner visa application charge is generally not refunded on withdrawal, so this decision has a real cost.

Moving from onshore to offshore

An applicant who has been refused onshore, or who cannot lodge onshore, may apply offshore. They must be outside Australia when the Subclass 309 application is made and when it is granted. Their departure from Australia, and any period of unlawful stay before departure, can affect later criteria, so the timing of departure should be planned with advice.

The Tribunal database of partner visa matters remitted to the Department includes Pan (Migration) [2021] AATA 2318, a Subclass 309 matter. The issues recorded were whether the applicant was a spouse or de facto partner and was validly married, the fact that an onshore application had been refused and the applicant had departed Australia, and delay in applying for the offshore visa. It shows that the history of an earlier onshore application can follow the couple into the offshore pathway. Each matter turns on its own evidence.

Changing lawyers or taking over a self-lodged application

Some couples lodge themselves and only seek advice when a problem appears. It is possible to bring in a lawyer after lodgement. Our guides to hiring an immigration lawyer after lodging your own application, getting a second opinion and appointing a representative using Form 956 explain the steps.

Common mistakes in the onshore vs offshore partner visa decision

The most common onshore vs offshore partner visa mistakes come from assuming that being in Australia is enough to apply in Australia. In practice, the following errors cause the most harm:

• Lodging onshore while holding, or having held since last arrival, a visa with condition 8503, which makes the application invalid.
• Assuming a strong relationship will satisfy the compelling reasons test for a Schedule 3 waiver.
• Leaving Australia on a Bridging visa A without first obtaining a Bridging visa B.
• Visiting Australia during a Subclass 309 application and staying in Australia when the Department is ready to grant.
• Assuming that the onshore and offshore streams have different relationship tests, and preparing weaker evidence for one of them.
• Missing the review deadline because the sponsor did not realise that, offshore, the sponsor is the review applicant.
• Treating the visitor visa as a way into the onshore pathway without checking its conditions.

Each of these mistakes can cost months, money and, in some cases, the chance to apply onshore at all. A careful onshore vs offshore partner visa assessment before lodgement avoids most of them. Our Subclass 820 visa guide and our article on whether to use a migration agent or lawyer for a partner visa explain how to approach the preparation.

Where My Migration Lawyers acts on onshore vs offshore partner visa matters

My Migration Lawyers acts for couples across Australia, and for Australian partners whose partners are overseas, by video consultation. We act for clients in Sydney through our partner visa lawyers Sydney and immigration lawyers Sydney pages, in Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra, Hobart and Parramatta. Couples comparing firms can read our guide to the best partner visa lawyer in Australia, and our partner visa lawyer guide explains what a lawyer does on these matters.

How My Migration Lawyers helps with the onshore vs offshore partner visa decision

My Migration Lawyers acts in many partner visa matters where the onshore vs offshore partner visa decision is the first and most important question, and many of those matters are complex. They include applicants holding a visitor visa with condition 8503, applicants who hold only a bridging visa, applicants without a substantive visa who must address Schedule 3, applicants affected by the section 48 bar, and couples where the applicant has previously been refused. The firm deals with complex cases as a regular part of its partner visa practice and is capable of handling them.

Before anything is lodged, the firm reviews the applicant's current visa, its conditions, the full immigration history and the sponsor's history, and advises in writing which pathway is legally open and which suits the family. Where the onshore pathway is open, the firm plans lodgement so the applicant receives the best bridging visa available, and advises on travel and Bridging visa B applications during processing. Where the offshore pathway is the right choice, the firm works mainly with the Australian partner, prepares the Subclass 309 and Subclass 100 application, and advises on visits to Australia and on being outside Australia for the grant. Where Schedule 3 or a condition 8503 waiver is involved, the firm presents the couple's own circumstances and evidence in the form the law requires.

If the visa is refused, the firm acts on the review, whether the review applicant is the applicant onshore or the sponsor offshore. Our work is led by Weiwei Zhang, Principal Lawyer. You can read more about My Migration Lawyers, visit our home page, browse more guides on our blog or send us a message through our contact page.

If you are weighing an onshore vs offshore partner visa application, get the pathway right before you lodge, travel or apply for a visitor visa. Book a consultation or call 1300 040 300.