Key Takeaways
- Which partner visa fits depends mainly on where the applicant is when the application is made and when the visa is decided: in Australia it is generally the onshore Subclass 820 and 801, outside Australia it is the offshore Subclass 309 and 100, and an engaged couple outside Australia may consider the Subclass 300 Prospective Marriage visa.
- Relationship type matters: married couples, de facto couples who meet the 12-month rule or have a registered relationship, and engaged couples each have a different starting point, and same-sex couples are assessed on exactly the same terms.
- The applicant's current visa can close a door: a No Further Stay condition 8503 generally blocks an onshore application, and an applicant without a substantive visa must meet the Schedule 3 criteria unless they are waived.
- The Australian partner must be an Australian citizen, Australian permanent resident or eligible New Zealand citizen; the partner of a New Zealand citizen who is not an eligible New Zealand citizen may need the Subclass 461 visa instead.
- The most expensive mistakes come from choosing the wrong pathway, for example lodging offshore and then being in Australia when the visa is ready to be decided, or lodging onshore while bound by condition 8503.
- My Migration Lawyers checks the location, relationship, visa history and sponsor facts before anything is lodged, so the couple applies once, for the right visa.
Which partner visa a couple should apply for is the first legal decision in any Australian partner visa matter, and it is the decision most often made too quickly. The answer to which partner visa fits is not a matter of preference. It turns on where the applicant is, the type of relationship, the visa the applicant holds now, the status of the Australian partner and the couple's plans over the next few years.
This guide explains which partner visa suits which situation. It compares the onshore pathway (Subclass 820 and Subclass 801), the offshore pathway (Subclass 309 and Subclass 100) and the Prospective Marriage visa (Subclass 300). It also explains the less common Subclass 461 option for partners of some New Zealand citizens. For a full overview of every stage, see our complete guide to partner visas in Australia. This article focuses on one question only: which partner visa is the correct starting point for your circumstances, and what goes wrong when couples choose the wrong one.
Which partner visa should you apply for? The short answer
The short answer is that which partner visa you apply for depends first on where the applicant will be when the application is lodged and when it is decided. If the applicant is in Australia and can lawfully lodge an application here, the usual pathway is the combined onshore application for the Subclass 820 temporary visa and the Subclass 801 permanent visa. If the applicant is outside Australia, the usual pathway is the combined offshore application for the Subclass 309 provisional visa and the Subclass 100 permanent visa. If the couple is engaged, has not yet married and the applicant is outside Australia, the Subclass 300 Prospective Marriage visa is a third option.
That starting rule is then tested against four further questions:
- Is the couple married, in a de facto relationship, or engaged to be married?
- Does the applicant's current visa carry a condition, such as condition 8503, that prevents an onshore application?
- Does the applicant hold a substantive visa at all, or will the Schedule 3 criteria apply?
- Is the Australian partner an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, and is that person able to sponsor?
Each question can change which partner visa is available. A couple can be in Australia and still be unable to lodge onshore. A couple can be married and still be better served by a different pathway because of travel plans. The right answer comes from putting all five factors together, not from looking at one in isolation.
The partner visa pathways at a glance
Before deciding which partner visa fits, it helps to understand that Australia does not have one partner visa. It has several visa subclasses that work in pairs, and each pair has its own location rules.
Subclass 820 and Subclass 801: the onshore partner visa
The onshore partner visa is a combined application for two visas. The Subclass 820 temporary partner visa is assessed first. The Subclass 801 permanent partner visa is assessed later, as the second stage of the same application. The couple lodges once and the Department of Home Affairs charges one application charge for both stages.
According to the Department, the applicant must be in Australia when the application is made, along with any family members who apply with them. The applicant can be in or outside Australia when the temporary Subclass 820 visa is decided. The Subclass 820 visa allows the holder to stay in Australia until the permanent Subclass 801 visa is finalised, to work and study, to travel in and out of Australia as many times as they want, and to apply for Medicare.
The permanent stage is generally assessed about two years after the combined application was lodged, when the Department asks for updated information and evidence that the relationship is continuing. Our article on the difference between Subclass 820 and Subclass 801 explains how the two stages connect, and our Subclass 820 visa explainer covers the onshore pathway in more depth.
Subclass 309 and Subclass 100: the offshore partner visa
The offshore partner visa follows the same two-stage design. The Subclass 309 provisional partner visa is assessed first and the Subclass 100 permanent partner visa is assessed later. The two are lodged together in one combined application.
The key difference is location. The applicant must be outside Australia when the application is made and must also be outside Australia when the Subclass 309 visa is granted. Once the Subclass 309 visa is granted, the applicant can travel to Australia and live here with their partner while the permanent stage is processed. The permanent Subclass 100 stage is generally assessed about two years after lodgement, in the same way as the onshore permanent stage.
Subclass 300: the Prospective Marriage visa
The Subclass 300 Prospective Marriage visa is for an applicant who is engaged to an Australian citizen, Australian permanent resident or eligible New Zealand citizen and who intends to come to Australia to marry. It is lodged outside Australia. The couple must marry within the visa period. After the marriage, the applicant applies in Australia for the onshore Subclass 820 and Subclass 801 visas, and the Department applies a reduced charge to that later application for Subclass 300 holders.
The Subclass 300 visa is a temporary visa. It is not a partner visa in its own right and it does not lead directly to permanent residence. It is a bridge between an engagement overseas and a partner visa application made in Australia after the wedding.
Subclass 461: partners of some New Zealand citizens
The Subclass 461 visa is not a partner visa in the usual sense. It is a temporary family relationship visa for a family member, including a partner, of a New Zealand citizen living in Australia who is not an eligible New Zealand citizen for partner sponsorship purposes. It is discussed further below, because it is often the answer when a couple discovers that the New Zealand partner cannot sponsor. Our Subclass 461 visa page explains the requirements.
Factor one: where the applicant is when applying and at grant
Location is the factor that most often decides which partner visa applies, because the location rules are written into the visa criteria themselves. They are not guidelines. An application that does not meet a location requirement is either not validly made or cannot be granted.
Applying from inside Australia
An applicant who is in Australia and holds a visa that permits a further application can generally lodge the onshore Subclass 820 and Subclass 801 application. This is the pathway most couples think of first, and for many it is correct. It allows the applicant to remain with their partner during processing, usually on a bridging visa.
When an applicant who holds a substantive visa lodges a valid onshore partner visa application, a Bridging Visa A is generally granted. The bridging visa comes into effect when the substantive visa ends and keeps the applicant lawful while the application is processed. Our overview of the bridging visa classes in Australia explains how the different bridging visas work.
Being physically in Australia is not enough by itself. The applicant's visa history and current conditions decide whether an onshore application can be made at all. That is the third factor, discussed in Body B of this guide.
Applying from outside Australia
An applicant who is outside Australia, or who cannot lawfully lodge in Australia, will generally need the offshore Subclass 309 and Subclass 100 application. The applicant must be outside Australia when the application is made. Applications are lodged online in ImmiAccount, wherever the applicant lives.
The offshore pathway is often the correct choice when the applicant is living and working overseas, when the applicant's current visa prevents an onshore application, or when the couple's plans mean the applicant will spend most of the processing period outside Australia anyway.
Where the applicant is at the time of decision
Location at the time of decision is the rule couples most often overlook when deciding which partner visa to lodge. For the onshore pathway, the Department states that the applicant can be in or outside Australia when the Subclass 820 visa is decided. For the offshore pathway, the applicant must be outside Australia when the Subclass 309 visa is granted.
This matters because offshore applicants sometimes visit Australia during processing. A visit on an appropriate visa is not prohibited. However, if the Department is ready to decide the Subclass 309 visa while the applicant is in Australia, it cannot be granted until the applicant leaves. A couple who expects the applicant to stay in Australia for long periods while the offshore application is processed should think carefully about which partner visa really fits their plans.
Choosing a location for the right reasons
Sometimes a couple has a genuine choice. The applicant may be in Australia on a visa that permits an onshore application, but the couple may also be able to apply offshore. In that case, which partner visa to pursue becomes a planning decision. Relevant matters include where the couple intends to live during processing, whether the applicant needs to work in Australia during that period, whether the applicant has work, study or family commitments overseas, and how often the couple expects to travel. The answer is different for every couple, which is why the location question should be settled before any evidence is collected.
Factor two: the type of relationship
Every partner visa requires a genuine and continuing relationship. However, the type of relationship decides which partner visa is available and what has to be shown at the time of application.
Married couples
A married couple can apply as spouses if the marriage is valid and recognised in Australia. A marriage conducted overseas is generally recognised if it was valid where it took place and is not a marriage that Australian law refuses to recognise. A married couple can use either the onshore or the offshore pathway, depending on location and the applicant's visa. Marriage alone does not prove that the relationship is genuine. The Department still assesses the relationship as a whole, and a marriage certificate is only one piece of evidence.
De facto couples and the 12-month rule
A de facto couple can apply on the basis of their de facto relationship. As a general rule, the couple must have been in a de facto relationship for at least 12 months immediately before the application is made. There are two main exceptions. The 12-month requirement does not apply if the relationship has been registered under a law of an Australian state or territory, or if compelling and compassionate circumstances exist.
The 12-month rule affects timing more than it affects which partner visa is chosen, but it can still decide the pathway. A de facto couple who have not reached 12 months and cannot register their relationship may need to wait, or may need to consider another option. Our guides to the de facto partner visa and the 12-month rule and to whether 12 months of de facto relationship is really required for a Subclass 820 visa explain the rule and its exceptions in detail.
Relationship registration is not available in every Australian state or territory, and each register has its own residence and eligibility rules. A couple who intends to rely on registration should confirm that the registration is available to them before the partner visa application is planned around it.
Engaged couples
An engaged couple who is not yet married and does not meet the de facto requirements has a narrower choice. If the applicant is outside Australia, the Subclass 300 Prospective Marriage visa may be available. The couple must genuinely intend to marry and to live together as spouses, and must have met in person. If the applicant is in Australia, the Subclass 300 visa is not the answer, because it is lodged outside Australia. An engaged couple in Australia usually needs to consider marrying first, or establishing a de facto relationship that meets the legal requirements, before deciding which partner visa to lodge.
Same-sex couples
Same-sex couples have access to every partner visa pathway on exactly the same terms as opposite-sex couples. Same-sex marriages are recognised in Australia, and same-sex de facto relationships are assessed under the same rules. The question of which partner visa fits is answered in the same way: by location, relationship type, visa history and the Australian partner's status. Additional practical issues can arise, for example where the relationship could not be openly acknowledged in the applicant's home country. Our page on partner visas for same-sex and LGBTI couples addresses those issues.
Long-distance relationships
Couples who have spent periods living in different countries often ask which partner visa suits a long-distance relationship. The answer still depends on location and relationship type, but the evidence will need to explain the periods apart. In PHAM (Migration) [2019] AATA 3680, an offshore Subclass 309 matter, the Tribunal considered a genuine de facto relationship where the couple were living in separate countries but had previously lived together, and the relationship history was central. Our guide to partner visa relationship evidence explains how a relationship conducted partly at a distance is usually documented.
Factor three: the visa the applicant holds now and its conditions
The applicant's current visa is the factor most likely to change which partner visa is available. Two applicants in Australia with identical relationships can face completely different options because one holds a visa that permits a further application and the other does not.
Holding a substantive visa without restrictive conditions
A substantive visa is any visa other than a bridging visa, a criminal justice visa or an enforcement visa. Visitor visas, student visas, working holiday visas and temporary work visas are all substantive visas. An applicant in Australia who holds a substantive visa without a condition that prevents a further application can generally lodge the onshore partner visa application. If the application is valid, a Bridging Visa A is generally granted, so the applicant remains lawful after the substantive visa ends. Our article on working while waiting for a Subclass 820 visa explains the work rights that usually come with that bridging visa.
Visitors in particular need to check their visa before deciding which partner visa to lodge. A visitor visa may or may not carry a condition that prevents an onshore application, and the conduct of the applicant on arrival can raise issues the Department will examine. Our guide on moving from a tourist visa to a partner visa in Australia covers what to check first.
Condition 8503: No Further Stay
Condition 8503 is the No Further Stay condition. If the applicant's current visa is subject to condition 8503, the applicant generally cannot make a valid application for another substantive visa while in Australia, including the onshore partner visa, unless the condition is first waived. A waiver is available only in limited circumstances and requires a separate request to the Department.
Condition 8503 is the most common reason that the answer to which partner visa fits changes from onshore to offshore. A couple who lodges onshore without noticing the condition does not simply receive a refusal. The application is generally not valid at all. Our article on whether you can apply for a Subclass 820 visa with a No Further Stay condition 8503 explains the condition, how to confirm it and how waiver requests work.
When condition 8503 applies and a waiver is not available, the practical answer is usually the offshore Subclass 309 and Subclass 100 application, or, for an engaged couple, the Subclass 300 visa. That means the applicant must leave Australia to apply and must be outside Australia when the provisional or prospective marriage visa is granted.
No substantive visa: the Schedule 3 criteria
An applicant in Australia who does not hold a substantive visa when the onshore partner visa application is made faces an additional hurdle. This includes an applicant holding only a bridging visa that is not a substantive visa, and an applicant who is unlawful. These applicants must generally satisfy the Schedule 3 criteria (criteria 3001, 3003 and 3004) unless the Department is satisfied that there are compelling reasons not to apply them.
The Schedule 3 question is often the deciding factor in which partner visa is realistic. An onshore application may still be possible, but it depends on the strength of the compelling reasons and the applicant's history. In Sandhu (Migration) [2018] AATA 1483, a Subclass 820 matter, the Tribunal considered whether compelling reasons existed for not applying the Schedule 3 criteria, including the length of the relationship and the difficulty of relocating offshore while the application was processed. Our pages on Schedule 3 waivers for partner visas, the Schedule 3 criteria when applying while unlawful and applying for a partner visa without a substantive visa explain the criteria and the evidence usually required.
An applicant in this position should not assume that leaving Australia and applying offshore is always simpler. Departure from Australia while unlawful can carry its own consequences for future visas. Which partner visa is safer depends on the applicant's full immigration history, and that history should be reviewed before any decision is made.
After a refusal or cancellation in Australia
An applicant who has had a visa refused or cancelled while in Australia may be limited in the further visas they can apply for while still in the country. The partner visa is one of the classes that can still be applied for in many of these cases, but the rules are technical and the outcome depends on the exact history. Our article on applying for a partner visa after a visa refusal explains the position, and our pages on visa refusals and visa cancellations cover the wider issues. A prior refusal does not always rule out an onshore partner visa, but it always needs to be considered before deciding which partner visa to lodge.
Factor four: the Australian partner's status and ability to sponsor
Every partner visa requires a sponsor. The sponsor is the Australian partner, and the sponsorship is completed online in ImmiAccount as part of the application process. The status of the Australian partner decides which partner visa is available at all.
Australian citizens and Australian permanent residents
An Australian citizen or Australian permanent resident can sponsor a spouse or de facto partner for the onshore Subclass 820 and Subclass 801 visas or the offshore Subclass 309 and Subclass 100 visas, and can sponsor a fiancé or fiancée for the Subclass 300 visa. For these couples, which partner visa fits is decided by the other factors in this guide.
Eligible New Zealand citizens
An eligible New Zealand citizen can also sponsor a partner. Not every New Zealand citizen living in Australia is an eligible New Zealand citizen. The term has a specific legal meaning, which generally depends on when and how the New Zealand citizen came to live in Australia. The difference matters, because a New Zealand citizen who does not meet the definition cannot sponsor a partner for the usual partner visas.
Partners of New Zealand citizens who are not eligible: Subclass 461
When the Australian partner is a New Zealand citizen who is not an eligible New Zealand citizen, the usual answer to which partner visa fits is that none of the partner visas does, at least for now. The Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa may be the appropriate option instead. It is a temporary visa that allows the family member of a New Zealand citizen to live in Australia. It does not provide permanent residence by itself, so the couple's longer-term plans need to be considered separately. Our Subclass 461 visa page explains how it works.
Couples in this position should also check whether the New Zealand partner's own status may change, for example through a permanent visa or Australian citizenship. If it does, the question of which partner visa fits may need to be revisited.
Sponsorship limitations
The Australian partner must also be able to sponsor. Sponsorship limitations apply. As a general rule, a person cannot sponsor a partner if they have already sponsored two partners in their lifetime, or if they sponsored a previous partner within the last five years, unless there are compelling circumstances. Additional limitations can apply in other situations, including some cases involving the sponsor's own history. Our partner visa sponsorship limitations page and our article on when a sponsor cannot sponsor a partner visa in Australia explain the rules.
A sponsorship limitation does not change which partner visa subclass is relevant, but it can determine whether any partner visa can succeed. The sponsor's history should therefore be checked as early as the applicant's history.
Factor five: timing, work and travel plans
Once the legal requirements narrow the options, timing and practical plans often decide which partner visa is the better fit. This is particularly true for couples who could lawfully apply either onshore or offshore.
Where the applicant will live during processing
Partner visa processing takes a significant period, and the Department publishes current processing times in its processing time guide tool. Our article on current Subclass 820 processing times covers the onshore pathway. The practical question is where the applicant will live during that period. An onshore applicant generally lives in Australia on a bridging visa. An offshore applicant generally waits outside Australia until the Subclass 309 visa is granted, although visits may be possible on an appropriate visa.
Work and study during processing
An onshore applicant on a Bridging Visa A will often have work rights, depending on the visa held before the application and the conditions of the bridging visa. An offshore applicant has no Australian work rights until the Subclass 309 visa is granted, unless they hold another visa that permits work. For a couple who needs both partners to work in Australia during processing, this can be the deciding factor in which partner visa to lodge.
Travel during processing
Travel plans matter more than many couples expect. An onshore applicant who holds a Bridging Visa A generally cannot leave Australia and return on that bridging visa. To travel and return, the applicant usually needs a Bridging Visa B granted before departure. Once the Subclass 820 visa is granted, the holder can travel in and out of Australia as many times as they want while the permanent stage is processed.
An offshore applicant can generally travel freely in the meantime, subject to holding the right visa for any country they visit, but must be outside Australia when the Subclass 309 visa is granted. A couple who expects frequent travel should map out the likely processing period before deciding which partner visa fits their plans.
Planned changes in the relationship
Some couples plan to marry, to register their relationship or to move in together within the next few months. Each of those events can change which partner visa is available or how the relationship is described in the application. Lodging before an important event can lock the couple into a weaker basis. Waiting for it can make the application stronger. The timing of lodgement is therefore a legal decision, not only a convenience.
Onshore Subclass 820 and 801 vs offshore Subclass 309 and 100: which partner visa suits you?
For couples who could lawfully use either pathway, the comparison between the onshore and offshore partner visa is the central question. The two pathways lead to the same permanent outcome. The differences lie in location, timing and day-to-day life during processing.
Where they are the same
Both pathways require a genuine and continuing relationship with an Australian citizen, Australian permanent resident or eligible New Zealand citizen. Both require sponsorship by the Australian partner. Both are two-stage applications, with a temporary or provisional visa assessed first and a permanent visa assessed later. Both require health examinations, police certificates and compliance with the public interest criteria, including the Australian Values Statement. Both use the same partner visa charge. Both allow a later permanent stage assessment about two years after lodgement, subject to the exceptions the law provides.
Where they differ
The onshore pathway requires the applicant to be in Australia when the application is made and permits the applicant to be in or outside Australia when the Subclass 820 visa is decided. It usually allows the applicant to stay in Australia during processing on a bridging visa. It is not available to an applicant whose visa carries condition 8503 unless the condition is waived, and it requires the Schedule 3 criteria to be met or waived where the applicant has no substantive visa.
The offshore pathway requires the applicant to be outside Australia when the application is made and when the Subclass 309 visa is granted. It is not affected by condition 8503 or by Schedule 3, because the application is made outside Australia. It usually means the applicant waits overseas, which may suit a couple who is still living abroad or whose plans involve the applicant finishing work or study outside Australia.
A practical way to compare
For couples who could choose either option, the comparison usually comes down to three practical questions:
- Where does the couple want to live while the application is processed, and can they lawfully do so on the pathway they choose?
- Does the applicant need work rights in Australia during processing?
- Does the couple expect international travel during processing, and can that travel be managed on each pathway?
Our Subclass 820 visa service page and Subclass 309 visa service page explain how each pathway is handled. Our comprehensive Subclass 820 partner visa guide covers the onshore requirements in more depth. The answer to which partner visa suits a particular couple is rarely obvious until all of these factors are considered together.
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Subclass 300 Prospective Marriage visa or marry first: which partner visa fits an engaged couple?
Engaged couples face a distinct choice. The applicant can apply for the Subclass 300 Prospective Marriage visa from outside Australia, come to Australia, marry within the visa period and then apply onshore for the Subclass 820 and Subclass 801 visas. Alternatively, the couple can marry first, wherever that is lawful and practical, and then lodge the onshore or offshore partner visa as a married couple.
When the Subclass 300 visa fits
The Subclass 300 visa usually fits when the applicant is outside Australia, the couple genuinely intends to marry in Australia, the couple has met in person and the couple does not yet meet the requirements for a de facto relationship. It allows the applicant to come to Australia for the wedding and then remain here to apply for the onshore partner visa. The Department applies a reduced charge to the later onshore application for Subclass 300 holders.
When marrying first fits better
Marrying first may be the better course when the couple can marry lawfully outside Australia, when the applicant's circumstances suit the offshore Subclass 309 pathway, or when the couple wants to avoid the risk that the planned wedding does not take place within the Subclass 300 visa period. A couple who marries first applies as spouses and avoids the separate prospective marriage stage altogether.
What happens when plans change
Plans for weddings change. In Mancka (Migration) [2021] AATA 3528, a Subclass 300 matter, the Tribunal considered the parties' genuine intention to marry and live together where the planned ceremony within the visa period did not take place and the couple had attempted to rebook the date. In Ergetu (Migration) [2020] AATA 3790, also a Subclass 300 matter, the parties married validly in a third country between the delegate's decision and the Tribunal's determination, and the regulations required the matter to be remitted for consideration as a partner visa. These decisions show that the choice between the Subclass 300 visa and a partner visa is not only made at the start. It can arise again as the couple's circumstances develop.
For engaged couples, which partner visa fits depends on where the wedding will take place, when it will take place and whether the couple is prepared to plan around the Subclass 300 visa period.
Illustrative scenarios: which partner visa fits these couples?
The following scenarios are generic illustrations only. They are not client stories and they do not describe any real matter. Each one shows how the factors in this guide combine to answer which partner visa is the appropriate starting point.
A couple where the applicant is in Australia on a student visa
An applicant holds a student visa without condition 8503. The couple has lived together for more than 12 months. On these facts, the onshore Subclass 820 and Subclass 801 application is usually the natural starting point. If the application is valid, a Bridging Visa A is generally granted, and the applicant can remain in Australia when the student visa ends. The couple should still check the student visa conditions, the date the student visa ends and any travel plans before lodgement.
A couple where the applicant is visiting on a visitor visa with condition 8503
An applicant holds a visitor visa with condition 8503. The couple is married. Despite being married and in Australia, the applicant generally cannot lodge an onshore partner visa unless the condition is waived. If a waiver is not available, the realistic answer to which partner visa fits is usually the offshore Subclass 309 and Subclass 100 application, lodged after the applicant leaves Australia.
A couple where the applicant lives overseas and the Australian partner is a citizen
An applicant lives and works overseas. The Australian citizen partner travels to visit regularly. The couple is married. The offshore Subclass 309 and Subclass 100 application is the usual fit. The applicant waits outside Australia and travels to Australia once the Subclass 309 visa is granted. If the applicant visits Australia during processing, the couple should plan for the applicant to be outside Australia when a decision is likely.
A couple who is engaged, with the applicant overseas
An applicant is overseas and engaged to an Australian permanent resident. The couple has met in person, intends to marry in Australia and has never lived together. The Subclass 300 Prospective Marriage visa is likely to be the fit. After marrying within the visa period, the applicant applies onshore for the Subclass 820 and Subclass 801 visas.
A couple where the Australian partner is a New Zealand citizen
An applicant is in Australia and is in a de facto relationship with a New Zealand citizen who arrived in Australia recently. If the New Zealand partner is not an eligible New Zealand citizen, the usual partner visas are not available, and the Subclass 461 visa may be the appropriate option. The couple should check the New Zealand partner's eligibility first, because that answer decides which partner visa, if any, can be lodged.
A couple where the applicant has no substantive visa
An applicant has remained in Australia after a previous visa ended and is now unlawful. The couple has a child together and a long relationship. An onshore partner visa may still be possible, but only if the Schedule 3 criteria are met or waived for compelling reasons. The alternative is leaving Australia and applying offshore, which carries its own consequences. Which partner visa is appropriate in this scenario depends on a full review of the applicant's immigration history before anything is lodged.
Mistakes that come from choosing the wrong partner visa
Choosing the wrong pathway is one of the most avoidable causes of invalid applications and refusals. The following mistakes come up repeatedly when couples decide which partner visa to lodge without checking every factor.
Lodging offshore, then being in Australia at the time of decision
A couple lodges the offshore Subclass 309 application and the applicant then travels to Australia and stays for long periods. The Subclass 309 visa cannot be granted while the applicant is in Australia. If the applicant is in Australia when the Department is ready to decide, the applicant needs to leave before grant. Couples who intended the applicant to remain in Australia should have considered the onshore pathway instead, if it was available.
Lodging onshore while bound by condition 8503
A couple lodges an onshore partner visa without checking the applicant's visa conditions. The applicant's visa carries condition 8503. The application is generally not valid, and the couple may lose time that could have been spent on an offshore application or a waiver request. Checking the visa grant notice and the applicant's visa record before lodgement avoids this mistake.
Lodging as de facto partners before the relationship qualifies
A couple lodges as de facto partners before they have been in a de facto relationship for 12 months, without a registered relationship and without compelling and compassionate circumstances. The application is exposed to refusal on that basis alone. Waiting, registering the relationship where that is available, or marrying first may have changed which partner visa was appropriate and how it could succeed.
Assuming the New Zealand partner can sponsor
A couple lodges a partner visa on the assumption that a New Zealand citizen partner can sponsor, without checking whether that partner is an eligible New Zealand citizen. If the New Zealand partner does not meet the definition, the partner visa cannot be granted. The Subclass 461 visa may have been the appropriate pathway.
Overlooking the sponsor's history
A couple lodges without checking whether the Australian partner has previously sponsored partners. A sponsorship limitation applies and the application faces refusal unless compelling circumstances exist. The sponsor's history should be checked before deciding which partner visa to lodge, not after.
Treating the Schedule 3 question as a formality
An applicant without a substantive visa lodges onshore without preparing a case on compelling reasons. The Schedule 3 criteria are applied and the application is refused. In Hassan (Migration) [2021] AATA 2159, a Subclass 820 matter, the applicant did not hold a substantive visa at the time of application and the Tribunal found that compelling reasons existed, with the sponsor's significant illnesses forming part of the circumstances. A Schedule 3 case needs evidence and argument from the start.
When a partner visa is refused, review may be available at the Administrative Review Tribunal. Review deadlines are short and strictly applied. Our pages on partner visa refusals, partner visa appeal options after a refusal, why partner visas get refused and the most common Subclass 820 refusal reasons explain the issues. Our guide on what to expect at an ART review covers the review process. The better course, in almost every case, is to choose the right partner visa before lodgement.
What the choice of pathway does not change
Choosing which partner visa to lodge decides the subclass, the location rules and the practical arrangements during processing. It does not change the core assessment of the relationship.
On every pathway, the Department assesses whether the relationship is genuine and continuing by looking at four aspects of the relationship: the financial aspects, the nature of the household, the social aspects and the nature of the commitment. The couple provides one relationship statement in their own words, together with documents and supporting statements. Our guides to the partner visa relationship statement, preparing evidence of a genuine relationship and Form 888 supporting statements explain how the evidence is usually prepared. Our partner visa document checklist sets out the documents in detail.
Health and character requirements also apply on every pathway. The Department may request a Form 80 for character assessment, and requests for further information are usually made under section 56. Our guides to completing Form 80 and responding to a section 56 request explain those steps. Changes in circumstances during processing are notified using Form 1022.
If the relationship ends during processing, the consequences depend on the stage of the application and the circumstances. Family violence provisions and the death of the sponsor can, in some cases, allow the permanent visa to be granted after the relationship has ended. Our pages on family violence and partner visas and what happens to a Subclass 820 application when the relationship breaks down explain these rules. For the cost of the application, see our article on Subclass 820 partner visa costs.
Getting advice on which partner visa fits, wherever you are in Australia
My Migration Lawyers advises couples across Australia, and consultations are held by video. Location in Australia does not change which partner visa applies, but many couples prefer advice that reflects where they live. We act for couples in Sydney, Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra, Hobart and Parramatta, and for applicants and sponsors outside Australia.
Couples whose situation also involves other visa issues can find our general immigration pages for Sydney, Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra, Hobart and Parramatta. Couples comparing representatives may find our guides on how to choose a partner visa lawyer in Australia, how to choose a partner visa lawyer in Sydney, how to choose a partner visa lawyer in Melbourne and when you need an immigration lawyer for a partner visa useful. Our article on booking an immigration lawyer consultation explains what to prepare.
How My Migration Lawyers works out which partner visa fits a couple before anything is lodged
My Migration Lawyers acts in many partner visa matters where the first question is which partner visa fits, and many of those matters are complex. They include applicants bound by condition 8503, applicants without a substantive visa who must address Schedule 3, sponsors with previous sponsorships, couples relying on relationship registration, engaged couples weighing the Subclass 300 visa against marrying first, and New Zealand partners whose eligibility is unclear. The firm is capable of handling these matters and deals with complex cases as a regular part of its partner visa practice.
Before anything is lodged, the firm works through each factor in this guide. It reviews the applicant's current visa and conditions, the full immigration history in Australia and any previous refusals or cancellations. It confirms where the applicant will be when the application is made and when a decision is likely, and it tests the couple's work and travel plans against each pathway. It examines the relationship type and the date the relationship began, checks whether the 12-month rule is met or an exception applies, and confirms the Australian partner's status and sponsorship history. The lawyer then advises the couple in writing which partner visa fits, why it fits and what risks remain.
Once the pathway is settled, the firm prepares the application on that basis. The relationship statement remains the couple's own account, reviewed and corrected by them, and the firm presents it in the form the law requires. Where a waiver, a Schedule 3 case or a sponsorship issue arises, the firm prepares the legal submissions and supporting evidence before lodgement. Our work is led by Weiwei Zhang, Principal Lawyer, and you can read more about My Migration Lawyers and our partner visa lawyers.
If you are unsure which partner visa fits your situation, the safest time to find out is before anything is lodged. Book a consultation online or call 1300 040 300.
Frequently Asked Questions
Which partner visa should I apply for if I am already in Australia?
If you are in Australia and hold a substantive visa that does not carry condition 8503, the usual partner visa is the combined onshore application for the Subclass 820 temporary visa and the Subclass 801 permanent visa. You must be in Australia when the application is made. If your visa carries condition 8503, or you do not hold a substantive visa, the answer may change, and the offshore Subclass 309 and Subclass 100 application or a waiver request may need to be considered first.
Which partner visa applies if my partner lives overseas?
If the applicant lives outside Australia, the usual partner visa is the combined offshore application for the Subclass 309 provisional visa and the Subclass 100 permanent visa. The applicant must be outside Australia when the application is made and when the Subclass 309 visa is granted. Once it is granted, the applicant can travel to Australia and live with the Australian partner while the permanent stage is processed. Engaged couples may also consider the Subclass 300 Prospective Marriage visa.
What is the difference between the Subclass 820 and Subclass 309 visas?
The main difference is location. The Subclass 820 visa is the onshore temporary partner visa, and the applicant must be in Australia when the application is made. The Subclass 309 visa is the offshore provisional partner visa, and the applicant must be outside Australia when the application is made and when the visa is granted. Both are lodged together with a permanent visa, the Subclass 801 and Subclass 100 respectively, and both require a genuine and continuing relationship and sponsorship by the Australian partner.
Can I apply for an onshore partner visa if my visa has condition 8503?
Generally, no. Condition 8503, the No Further Stay condition, prevents the visa holder from making a valid application for most other substantive visas while in Australia, including the onshore Subclass 820 and Subclass 801 partner visa. The condition can be waived only in limited circumstances, and a waiver must be requested and granted before the partner visa application is made. If a waiver is not available, the offshore Subclass 309 and Subclass 100 pathway is usually the alternative.
Which partner visa can I apply for if I do not hold a substantive visa?
An applicant in Australia without a substantive visa may still be able to lodge the onshore Subclass 820 and Subclass 801 application, but must generally meet the Schedule 3 criteria unless there are compelling reasons not to apply them. This includes applicants who hold only a bridging visa that is not a substantive visa and applicants who are unlawful. Whether an onshore or offshore application is safer depends on the applicant's full immigration history, which should be reviewed before anything is lodged.
Do we need to be married to apply for a partner visa?
No. A couple can apply as spouses if they are validly married, or as de facto partners if they are in a de facto relationship. De facto couples generally need to have been in the relationship for at least 12 months before applying, unless the relationship is registered in an Australian state or territory or compelling and compassionate circumstances apply. Engaged couples who are not married and do not meet the de facto requirements may consider the Subclass 300 Prospective Marriage visa if the applicant is outside Australia.
Which partner visa is available to engaged couples?
The Subclass 300 Prospective Marriage visa is the visa designed for engaged couples where the applicant is outside Australia and the couple intends to marry. The couple must have met in person and must marry within the visa period. After the marriage, the applicant applies in Australia for the Subclass 820 and Subclass 801 visas. An engaged couple may instead choose to marry first and then apply as spouses, either onshore or offshore, depending on where the applicant is.
Can same-sex couples apply for the same partner visas?
Yes. Same-sex couples have access to the onshore Subclass 820 and Subclass 801 visas, the offshore Subclass 309 and Subclass 100 visas and the Subclass 300 Prospective Marriage visa on exactly the same terms as opposite-sex couples. Same-sex marriages are recognised in Australia and same-sex de facto relationships are assessed under the same rules. Which partner visa fits a same-sex couple is decided by the same factors, namely location, relationship type, visa history and the Australian partner's status.
Can my New Zealand citizen partner sponsor me for a partner visa?
A New Zealand citizen can sponsor a partner only if they are an eligible New Zealand citizen, which is a specific legal status that depends on when and how they came to live in Australia. Many New Zealand citizens living in Australia do not meet that definition. If your partner is not an eligible New Zealand citizen, the usual partner visas are not available, and the Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa may be the appropriate option instead.
Can I visit Australia while my offshore Subclass 309 application is being processed?
Yes, a visit is generally possible if you hold an appropriate visa for the visit, such as a visitor visa. However, the Subclass 309 visa can only be granted while you are outside Australia. If the Department is ready to decide your application while you are in Australia, the grant will wait until you leave. Couples who plan long or frequent visits should consider this before choosing between the offshore and onshore partner visa pathways.
Can I travel overseas after lodging an onshore partner visa?
You can travel, but you need to plan it. An onshore applicant who holds a Bridging Visa A generally cannot return to Australia on that bridging visa after departing. To leave and return during processing, you usually need a Bridging Visa B granted before you depart. Once the Subclass 820 visa is granted, you can travel in and out of Australia as many times as you want while the permanent Subclass 801 stage is processed.
Which partner visa is better if we could apply either onshore or offshore?
Neither pathway is better in general. Both lead to the same permanent outcome and use the same partner visa charge. The right choice depends on where the couple wants to live during processing, whether the applicant needs to work in Australia during that period and how much international travel the couple expects. The onshore pathway usually allows the applicant to stay in Australia on a bridging visa, while the offshore pathway usually means waiting outside Australia until the Subclass 309 visa is granted.
What happens if we lodge the wrong partner visa?
The consequences depend on the mistake. An onshore application lodged while condition 8503 applies is generally not valid. An offshore Subclass 309 application cannot be granted while the applicant is in Australia. A de facto application lodged before the relationship qualifies, or with a sponsor who is subject to a sponsorship limitation, may be refused. Some mistakes can be corrected, while others cost the couple significant time. Choosing the right partner visa before lodgement avoids most of these problems.
Can my partner sponsor me if they have sponsored someone before?
Possibly, but sponsorship limitations apply. As a general rule, a person cannot sponsor a partner if they have already sponsored two partners in their lifetime, or if they sponsored a previous partner within the last five years, unless there are compelling circumstances. Other limitations can apply in particular situations. The sponsor's history should be checked before the application is prepared, because a sponsorship limitation can decide whether any partner visa can succeed.
Does choosing the onshore or offshore partner visa change the relationship requirements?
No. Every partner visa pathway requires a genuine and continuing relationship, and the Department assesses the same four aspects of the relationship: the financial aspects, the nature of the household, the social aspects and the nature of the commitment. The couple provides one relationship statement together with documents and Form 888 supporting statements. Health, character and public interest requirements also apply on every pathway. The choice of pathway changes the location rules and the practical arrangements, not the relationship test.
When should we get advice on which partner visa to apply for?
Advice is most useful before anything is lodged, and ideally before the couple starts collecting evidence. At that stage, the applicant's visa conditions, immigration history, relationship type and the sponsor's status can all be checked, and the pathway can be chosen around the couple's plans. Advice after lodgement can still help, but some mistakes, such as lodging onshore while bound by condition 8503, cannot be fixed once the application has been made.
Weiwei Zhang is the Principal Lawyer and Managing Director of My Migration Lawyers. My Migration Lawyers is one of Australia's leading immigration law firms, dedicated exclusively to Australian immigration law. The firm represents individuals, families and businesses across all areas of migration law, with particular expertise in complex immigration matters, Partner Visas, Protection Visas, corporate migration, visa refusals, Administrative Review Tribunal reviews, judicial reviews and visa cancellations.
