Am I Eligible for a Partner Visa?

Partner visa eligibility is the first question every couple should answer before they lodge anything. This guide explains partner visa eligibility in Australia from the other direction: it sets out the core tests, then works through the common reasons applicants are not eligible, and finishes with a practical way to check your position before lodging.

The answer to "Am I eligible for a partner visa?" is rarely decided by the relationship alone. The Department of Home Affairs decides partner visa eligibility against criteria in the Migration Act 1958 and the Migration Regulations 1994. Some criteria concern the relationship. Many others concern the applicant's visa, immigration history, health, character and past dealings with the Department. A genuine couple can still fail partner visa eligibility because of a condition on a visitor visa or because the applicant has been without a visa for too long.

This article is a self-assessment guide. It does not replace the full overview in the firm's complete guide to partner visas in Australia, and it does not repeat the document list in the 820 visa guide to requirements, documents and how to apply. Its purpose is narrower and more practical: to help you find out whether anything stops you from applying, before you spend time and money on an application that cannot succeed. Couples who want their position reviewed by a lawyer can read about the firm's partner visa lawyers.

What does partner visa eligibility mean?

Partner visa eligibility means meeting every legal criterion for the partner visa you apply for, both when you apply and when the Department decides. It is not a single test. It is a series of tests, and failing any one of them can lead to refusal.

The criteria fall into three groups.

• Validity requirements. These decide whether the application is valid at all. They include where you are when you apply, whether a condition on your visa prevents a further application, and whether certain documents are lodged with the application. An invalid application is not assessed.
• Time of application criteria. These must be met on the day you lodge. Examples are the relationship with an eligible sponsor, the Schedule 3 criteria for people without a substantive visa, and the rules about skilled regional visas.
• Time of decision criteria. These must be met when the Department decides. They include the continuing relationship, health, character, debts to the Commonwealth, integrity and the passport requirement.

A useful way to think about partner visa eligibility is as a set of gates. The first gate is validity. The second is the time of application criteria. The third is the time of decision criteria. A couple must pass through all three.

Which partner visa are we talking about?

Partner visa eligibility depends on which visa you apply for. Australia has several partner visas.

• Subclass 820 and Subclass 801. The onshore partner visa. The applicant applies in Australia for the temporary Subclass 820 partner visa and the permanent Subclass 801 visa at the same time, in one combined application.
• Subclass 309 and Subclass 100. The offshore partner visa. The applicant applies outside Australia for the temporary and permanent stages together. The firm's page on the Subclass 309 visa explains this pathway.
• Subclass 300. The Prospective Marriage visa, for a person outside Australia who intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen.

For the two-stage visas, the permanent stage is generally assessed about two years after the combined application was lodged. The difference between the stages is explained in the article on Subclass 820 vs Subclass 801, and the onshore visa as a whole is described in the guide to the Subclass 820 visa and the onshore partner visa.

Most of the eligibility blockers in this article arise in onshore applications. That is because people in Australia already hold a visa, and that visa may carry conditions or a history that affects partner visa eligibility.

The core partner visa eligibility tests

The core partner visa eligibility tests are the relationship, the status of the partner, the age and marriage rules, and the place of application. Each is explained below.

Married to, or in a genuine relationship with, an eligible partner

The applicant must be the spouse or de facto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. For the onshore visa, this requirement sits in subclause 820.211(2) of Schedule 2 to the Migration Regulations 1994.

"Spouse" means a married partner. It is defined in section 5F of the Migration Act 1958. Since 9 December 2017, the sex or gender of the parties does not affect the right to marry under Australian law. Same-sex couples apply in the same way as other couples, and the firm's LGBTI partner visa page covers issues specific to those applications.

A de facto partner is defined in section 5CB of the Act. De facto relationships have their own additional rules, which are covered in the firm's article on the de facto partner visa and the 12-month rule. This guide does not repeat them.

Who counts as an eligible partner

The Australian partner must be an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. An eligible New Zealand citizen is defined in regulation 1.03 of the Migration Regulations 1994. In broad terms, it is a New Zealand citizen who is a protected Special Category Visa holder within the meaning of the Social Security Act 1991.

This point is often missed. Not every New Zealand citizen living in Australia is an eligible New Zealand citizen. If the New Zealand partner does not meet the definition, the partner visa may not be available on that basis, and a different visa may need to be considered, such as the Subclass 461 New Zealand Citizen Family Relationship visa. Checking the partner's status is one of the first steps in any partner visa eligibility assessment.

The Australian partner also acts as the sponsor. Sponsors have their own rules and limits. These are not the subject of this article, but they can stop an application, and they are mentioned briefly later in this guide.

The relationship must be genuine and continuing

Partner visa eligibility requires a genuine and continuing relationship, not simply a marriage certificate. For married couples, section 5F requires that the parties have a mutual commitment to a shared life as spouses to the exclusion of all others, that the relationship is genuine and continuing, and that they live together or do not live separately and apart on a permanent basis. Regulation 1.15A lists the factors the Department must consider: the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons' commitment to each other.

These four aspects are assessed from the evidence as a whole. They are not separate documents. A partner visa has one relationship statement, which is the applicant's own account of the relationship. Friends and family may provide Form 888 supporting statements. The firm's guides on how to prove your relationship is genuine, preparing evidence of a genuine relationship, the partner visa relationship statement and who can make a Form 888 and what it should say explain the evidence in detail.

For this partner visa eligibility check, the key point is simple. The relationship must exist, and be genuine and continuing, at the time of application and at the time of decision.

Minimum age rules

The minimum age rules depend on the visa and the type of relationship.

• Married couples. The marriage must be recognised as valid under Australian law. The marriageable age for a marriage solemnised in Australia is generally 18. The Marriage Act 1961 permits marriage under 18 only in exceptional circumstances with a court order. Some foreign marriages involving a person aged 16 or 17 can be recognised, but not where either party was domiciled in Australia at the time of the marriage.
• De facto couples. Regulation 2.03A requires both the applicant and the partner to have been at least 18 when the application was made.
• Prospective Marriage visa. The applicant and the prospective spouse must each be at least 18 at the time of application, and they must have met in person since each of them turned 18.

There is no upper age limit for partner visa eligibility.

A marriage that Australian law recognises

A married applicant must have a marriage that is recognised as valid for the purposes of the Migration Act. Section 12 of the Act applies Part VA of the Marriage Act 1961 to decide whether a foreign marriage is recognised. Marriages can fail recognition for several reasons, for example where a party was already married to someone else, where the parties are within a prohibited degree of relationship, where either party did not give real consent, or where the age rules above are not met.

A marriage that is not recognised does not end the partner visa eligibility question, but it changes it. The couple may need to rely on a de facto relationship instead, which brings different rules. The Tribunal decision in 1706602 (Migration) [2019] AATA 5299, a Subclass 309 matter that the Tribunal remitted, records the issues as the genuine spousal relationship, the validity of the marriage with the sponsor, the status of the visa applicant's previous marriage, and whether the marriage was solemnised and recognised as valid under local laws. It shows that a previous marriage, and how it ended, can sit at the centre of partner visa eligibility.

Where you are when you apply, and the visa that fits

Partner visa eligibility depends on where the applicant is physically located on the day of lodgement.

• In Australia. The applicant must be in Australia, but not in immigration clearance, to make a valid Subclass 820 application. The applicant must also be in Australia, and not in immigration clearance, when the Subclass 820 visa is granted.
• Outside Australia. The applicant applies for the Subclass 309 and Subclass 100 visas, or for the Subclass 300 visa, from outside Australia. A Subclass 300 applicant must be outside Australia at the time of application.

Choosing the wrong stream is a common partner visa eligibility mistake. An applicant who lodges an onshore application and then leaves Australia for a long period risks refusal, because the Subclass 820 visa cannot be granted while the applicant is outside Australia. An applicant who is in Australia on a visitor visa with a "no further stay" condition may not be able to apply onshore at all. The firm's article on moving from a tourist visa to a partner visa in Australia discusses that situation.

A note on relationship length

For married couples, there is no fixed minimum relationship length for partner visa eligibility. The question is whether the marriage is genuine and continuing, assessed against the four aspects. A short relationship is not a bar, although it may need stronger evidence.

De facto couples are different. A minimum period generally applies to de facto relationships, with exceptions. Readers in a de facto relationship should read whether you really need 12 months of de facto relationship before applying. The wider requirements for the onshore visa are set out in the Subclass 820 partner visa complete guide.

Why partner visa eligibility often fails on something other than the relationship

Most refused or invalid applications do not fail because the couple is not genuine. They fail on a partner visa eligibility blocker that the couple did not know about. The remainder of this guide focuses on those blockers, because they are where a self-assessment is most useful.

The blockers fall into four families.

• Visa conditions and status. Condition 8503 and similar conditions, holding no substantive visa, being in immigration clearance, and holding certain skilled regional visas.
• Immigration history. A previous visa refusal or cancellation, the section 48 bar, earlier applications that contradict the current one, and previous partner visa history.
• Public interest criteria. Health, character, debts to the Commonwealth, integrity (PIC 4020), the values statement and the passport requirement.
• The sponsor. Sponsorship limitations and other restrictions on who may sponsor.

Each family is explained below. Before reading on, it is worth writing down three facts: the visa you hold today and its conditions, the last substantive visa you held if you no longer hold one, and every visa application you have made to Australia in the past, including any that were refused. Those three facts answer most partner visa eligibility questions.

Condition 8503 and other "no further stay" conditions

Condition 8503 is the most common partner visa eligibility blocker for people already in Australia. It is a condition in Schedule 8 to the Migration Regulations 1994. It provides that the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

In practice, condition 8503 prevents a valid onshore application for a partner visa. 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 8503 is mandatory on some visitor visas, such as the Sponsored Family stream, and is imposed at the Department's discretion on others, including some tourist stream visas.

Two related conditions work in a similar way for student visa holders. Condition 8534 and condition 8535 also prevent the grant of most substantive visas while the holder remains in Australia.

Can condition 8503 be waived for a partner visa?

Yes, in limited circumstances. The Department can waive condition 8503 on request. The waiver grounds are prescribed in regulation 2.05 of the Migration Regulations 1994. In general terms, the circumstances must be compelling or compassionate, they must have developed after the visa was granted, the visa holder must have had no control over them, and they must have resulted in a major change to the person's circumstances.

A new relationship that began after the visa was granted is not automatically enough. The Department looks at the whole of the circumstances. A waiver must be granted before a valid partner visa application can be made. The date of application is the date the condition is waived, not the date the waiver request was lodged. A decision not to waive is generally not reviewable at the Tribunal.

There is one important timing point. The waiver request is made while the visa is still in effect. If the visa expires before a decision, the person may be left without a substantive visa, which brings Schedule 3 into play. The firm's article on applying for a Subclass 820 visa with a No Further Stay condition explains the waiver process in detail.

Does condition 8503 stop an offshore application?

No. Condition 8503 operates only while the holder remains in Australia, and it ceases to have effect when the holder leaves. A person with condition 8503 can leave Australia and apply for an offshore partner visa, subject to the other criteria. For many couples, that is the only realistic route, and an honest partner visa eligibility assessment will say so.

No substantive visa: Schedule 3

Holding no substantive visa does not automatically end partner visa eligibility, but it adds a serious extra test. A substantive visa is any visa other than a bridging visa, a criminal justice visa or an enforcement visa. A person on a bridging visa, or a person who is unlawful, does not hold a substantive visa.

Under subparagraph 820.211(2)(d)(ii), an applicant who does not hold a substantive visa at the time of 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.

In broad terms, criterion 3001 asks whether the application was made within 28 days after the applicant last held a substantive visa, or within the corresponding period set out in the criterion. Criteria 3003 and 3004 ask, among other things, whether the applicant became unlawful for reasons beyond their control, whether there are compelling reasons for the grant of the visa, whether they substantially complied with the conditions on their last visa, and whether they would have been entitled to the visa if they had applied immediately before becoming unlawful.

The firm's Schedule 3 waiver page, and its articles on Schedule 3 criteria for applicants who are unlawful and the Schedule 3 partner visa waiver, set out the requirements.

What counts as compelling reasons to waive Schedule 3?

The Department's policy says that a genuine relationship, and the hardship of separation if the applicant had to apply offshore, are not on their own compelling reasons to waive Schedule 3. That is because every partner visa involves a genuine relationship. The policy also says that where there is an Australian citizen child with a demonstrable link to the applicant, a decision may be made to waive Schedule 3 in the best interests of the child.

Under Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the decision maker must consider all of the applicant's circumstances, as known up to the time of decision, and decide whether any of them provide compelling reasons. The factors the Department considers include any history of non-compliance with visa conditions, how long the applicant has been unlawful, why they became unlawful, why they did not seek to become lawful sooner, the family composition and any dependent children, and what steps they have taken to regularise their status.

The issue appears regularly in Tribunal decisions. In Harpreet Singh (Migration) [2019] AATA 5689, a Subclass 820 matter that the Tribunal remitted following a Federal Circuit Court remittal, the issues recorded were the Schedule 3 criteria, an application lodged outside of the relevant timeframe, and compelling reasons for waiver. The case shows that an application lodged outside the Schedule 3 timeframe is not automatically hopeless, but it turns on evidence of compelling reasons.

Bridging visas and Schedule 3

People on a bridging visa often assume they are lawful and therefore safe. A bridging visa does keep a person lawful, but it is not a substantive visa. An applicant who holds only a bridging visa when lodging a partner visa must still deal with Schedule 3. The firm's guides to bridging visas in Australia and Bridging Visa A explain the different bridging visas and how they arise.

The safest course is to lodge a partner visa while still holding a substantive visa, if partner visa eligibility otherwise allows it. Lodging on the last day, or a day late, can change the whole assessment.

Being in immigration clearance

An applicant who is in immigration clearance cannot make a valid Subclass 820 application. Immigration clearance is the process a person goes through at the border on arrival in Australia. A person who arrives at an airport and seeks to apply for a partner visa before being cleared is not eligible to apply onshore at that point. The Subclass 820 visa can also only be granted while the applicant is in Australia and not in immigration clearance.

This partner visa eligibility rule rarely affects couples who plan ahead, but it matters for people who are refused entry, or held at the border, and who then try to rely on their relationship.

Previous refusals, cancellations and the section 48 bar

A previous refusal or cancellation is one of the most misunderstood partner visa eligibility issues. Many people believe a refusal means they can never apply for a partner visa in Australia. That is generally not correct.

What section 48 does

Section 48 of the Migration Act 1958 applies to a non-citizen in Australia who does not hold a substantive visa and who, since last entering Australia, has been refused a visa (other than a bridging visa) or has had a visa cancelled under certain provisions. A person subject to section 48 can only apply for a visa of a class prescribed by the Regulations.

Partner visas are an exception

Partner visas are among the prescribed classes. Regulation 2.12 of the Migration Regulations 1994 allows a person subject to section 48 to apply for a Subclass 820 and Subclass 801 partner visa. So a section 48 bar does not, by itself, defeat partner visa eligibility.

There are two practical consequences.

• The sponsorship must be lodged with the application. Ordinarily, an onshore partner visa can be lodged without the sponsorship form, and the sponsor completes it afterwards. For an applicant subject to section 48, Schedule 1 item 1124B requires additional matters to be met for a valid Subclass 801 application, including a completed sponsorship form signed by the sponsoring partner. If it is missing, the application may be invalid.
• Schedule 3 will usually apply. A person subject to section 48 does not hold a substantive visa, so the Schedule 3 criteria described above will generally have to be met or waived.

The firm's article on applying for a partner visa after a visa refusal explains this in detail, and the firm's pages on visa refusals and visa cancellations cover the wider position.

Cancellations on character grounds

A cancellation on character grounds raises separate and more serious restrictions than an ordinary refusal. A person whose visa has been cancelled or refused under section 501 may face limits on the visas they can apply for while in Australia. Partner visa eligibility in that situation must be assessed on the specific cancellation, the provision used and the current status of any review.

Skilled regional visa holders

Some skilled regional visa holders are not eligible to apply for an onshore partner visa until they have held their regional visa for a minimum period. Under Schedule 1 item 1214C, a holder of certain earlier regional visas (Subclass 475, Subclass 487 and related classes) must have held that visa for at least two years. A holder of a Subclass 491 or Subclass 494 visa, or a person whose last substantive visa was one of those, must have held that visa for at least three years.

Clause 820.212 also requires the holder of a specified regional visa to have substantially complied with its conditions, including the requirement to live, work and study in regional Australia. A Subclass 771 transit visa holder cannot meet the time of application criteria at all.

This partner visa eligibility rule surprises many regional visa holders, because the relationship may be entirely genuine. The issue is timing, and the answer is often to wait.

Sponsorship limitations, in brief

The sponsor's history can also stop an application. Limits apply to how many partners a person may sponsor, and how soon after a previous sponsorship, or after the sponsor was themselves sponsored as a partner. Other restrictions apply to sponsors with certain criminal convictions, particularly where children are included. These rules are explained on the firm's page on partner visa sponsorship limitations and in the article on when a sponsor cannot sponsor a partner visa. Any partner visa eligibility check should include them.

Previous partner visa history

The applicant's own previous partner visa history matters to partner visa eligibility in several ways.

• An earlier refused partner visa. A refusal can trigger section 48 and Schedule 3 if the applicant remains in Australia without a substantive visa. It can also mean the Department already holds a detailed record of the earlier relationship claims.
• An earlier relationship with a different sponsor. A previous partner visa based on a different relationship is not a bar. It must be disclosed. Its dates must be consistent with the current relationship history.
• A previous Subclass 300 visa. Specific provisions in clause 820.211 deal with people who hold, or have held, a Prospective Marriage visa. Their position depends on whether they married the person they entered Australia to marry, and when.

Earlier applications are compared with the current one. Answers about marital status, addresses and previous partners in a visitor visa or student visa application can be revisited years later. That is why the firm's Form 80 guide to personal particulars stresses consistency across every document lodged with the Department.

Visa conditions on the current visa that do not block eligibility

Not every visa condition affects partner visa eligibility. Work limits, study limits and health insurance conditions do not prevent a partner visa application. Breaches of those conditions can matter later, for example under Schedule 3 if the applicant becomes unlawful, or in the character or integrity assessment. The answer depends on the specific condition and the history.

Once a valid onshore application is lodged, most applicants who held a substantive visa are granted a bridging visa. The article on working while waiting for a Subclass 820 visa explains work rights during processing, and the guide to Bridging Visa B explains travel during processing.

Health, character and the other public interest criteria

The public interest criteria are a further set of partner visa eligibility tests. For the onshore visa, clause 820.223 requires the primary applicant to satisfy PIC 4001, 4002, 4003, 4004, 4007 and 4009, and PIC 4019 if they had turned 18 at the time of application. Clause 820.226 adds PIC 4020 and PIC 4021.

The health requirement

The applicant must meet the health requirement. For the onshore partner visa, the relevant criterion is PIC 4007. The applicant completes the health examinations requested by the Department, and a Medical Officer of the Commonwealth assesses the results. PIC 4007 contains a waiver that may be available in some circumstances, which makes the health requirement for partner visas more flexible than for many other visas.

Family members can affect partner visa eligibility even if they are not applying. Under subclause 820.224(1A), members of the family unit who are not applicants must also satisfy certain criteria, including PIC 4007 unless it would be unreasonable to require them to be assessed.

The Tribunal decision in 1923768 (Migration) [2020] AATA 3910, a Subclass 309 matter that the Tribunal remitted, records the issues as a failure to meet the health criteria, the requirements in PIC 4007 not being met, a further Medical Officer of the Commonwealth opinion being provided, and the visa applicant then satisfying the health criteria. It shows that a health finding is not always the end of the matter.

The character requirement

The applicant must meet the character requirement in PIC 4001. The Department relies on police certificates, Form 80 and its own records. The character test is set out in section 501 of the Migration Act. A criminal record does not automatically end partner visa eligibility, but it must be disclosed accurately and assessed carefully. A non-disclosure that is later discovered can create a second problem under PIC 4020.

Debts to the Commonwealth: PIC 4004

PIC 4004 requires that the applicant has no outstanding debts to the Commonwealth, unless the Department is satisfied that appropriate arrangements have been made for payment. A debt to the Commonwealth is not limited to the Department of Home Affairs. It can include debts owed to other Commonwealth agencies. A debt that has been written off is still taken into account. A debt that has been waived is not. People who were previously held in immigration detention, or who owe other Commonwealth debts, should check this partner visa eligibility point before lodging.

Integrity: PIC 4020

PIC 4020 is the integrity criterion. In broad terms, an applicant can fail it where they have given a bogus document or information that is false or misleading in a material particular, in the current application or in certain earlier applications. Failing PIC 4020 can lead to refusal and to a period during which further visas cannot be granted.

PIC 4020(4) allows the Department to waive the requirement where there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen. In the partner visa context, those circumstances often concern the sponsor or an Australian child. The waiver does not apply to the identity limbs of the criterion.

A previous relationship, a previous partner visa application or a previous Subclass 300 application is not a problem in itself for partner visa eligibility. Failing to disclose it can become one.

The values statement and the passport requirement

PIC 4019 requires applicants aged 18 or over to sign the Australian Values Statement. PIC 4021 is the passport requirement. Both are routine for most applicants, but both are still partner visa eligibility criteria.

The Department's approach to inconsistent or adverse information is explained in the articles on the section 57 natural justice letter for a partner visa, why partner visas get refused and the most common reasons Subclass 820 partner visas are refused.

What partner visa eligibility does not require

Partner visa eligibility does not require several things people often worry about. Knowing what is not required is as useful as knowing what is.

• No minimum income. There is no income threshold for the applicant or the sponsor. The financial aspects of the relationship are assessed, but the question is how the couple share their finances, not how much they earn.
• No English test. There is no English language test for a partner visa. Applicants are not required to sit a test or to show a set level of English.
• No skills assessment or points test. A partner visa is not a skilled visa. Occupation, qualifications and work experience are not partner visa eligibility criteria.
• No upper age limit. The age rules set a minimum age. There is no maximum.
• No requirement to marry in Australia. A marriage overseas can be recognised if it meets Part VA of the Marriage Act 1961.
• No fixed relationship length for married couples. A married couple must show a genuine and continuing relationship. There is no set minimum period of marriage.
• No requirement to own property. Renting, living with family and other arrangements are all consistent with partner visa eligibility.

None of this means the application is easy. It means the partner visa eligibility test focuses on the relationship, the immigration position and the public interest criteria, rather than on wealth, language or skills.

Partner visa eligibility questions to ask yourself before lodging

A structured self-check catches most partner visa eligibility problems before they become refusals. The questions below are in the order the law applies them.

Step 1: Is my partner an eligible sponsor?

Confirm that the Australian partner is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Then confirm that no sponsorship limitation applies. If the partner is a New Zealand citizen, check whether they are an eligible New Zealand citizen under regulation 1.03.

Step 2: Where am I, and which visa fits?

If you are in Australia, the onshore Subclass 820 and Subclass 801 visas are the starting point. If you are outside Australia, the offshore Subclass 309 and Subclass 100 visas, or the Subclass 300 visa, are the starting point. If you are in Australia but cannot apply onshore, ask whether applying from outside Australia is realistic.

Step 3: What visa do I hold today, and what are its conditions?

Check your current visa grant notice and the Department's Visa Entitlement Verification Online service for the conditions on your visa. Look for condition 8503, 8534 or 8535. If one applies, a waiver must be granted before a valid onshore application can be made. Check also whether you hold a skilled regional visa that has not been held for the minimum period.

Step 4: If I hold no substantive visa, when did my last one end?

If you hold only a bridging visa, or no visa, identify the date your last substantive visa ended and why. That date drives the Schedule 3 assessment. If the 28-day window has passed, compelling reasons will generally need to be shown.

Step 5: Have I ever been refused a visa or had one cancelled?

List every Australian visa application, including refused and withdrawn applications. If you have been refused or cancelled since last entering Australia and hold no substantive visa, section 48 applies. Partner visas remain available, but the sponsorship must be lodged with the application.

Step 6: Is my marriage or relationship recognised, genuine and continuing?

Check that a marriage is recognised under Part VA of the Marriage Act, including whether any previous marriage was legally ended. Then check the evidence across the four aspects of the relationship. The firm's partner visa document checklist and 820 partner visa evidence checklist show the documents usually required, and the guide to Form 888 example answers and common mistakes helps with supporting statements.

Step 7: Will I meet health, character, debt and integrity criteria?

Consider any health condition, any criminal history in any country, any debts to the Commonwealth, and any incorrect information given in an earlier application. Each of these needs to be addressed before lodging, not after the Department raises it.

Step 8: Is everything consistent?

Compare the relationship history with every earlier visa application, passenger card and form. Addresses, travel dates, marital status and previous relationships should match. Where an earlier answer was wrong, it should be corrected properly, rather than contradicted silently.

If every answer is clear, partner visa eligibility is likely to be straightforward on the legal criteria, and the work moves to evidence. If any answer is uncertain, that is the point at which advice is most valuable.

Common partner visa eligibility mistakes

The following mistakes are generic illustrations, not accounts of any client. They show how ordinary situations become partner visa eligibility problems.

• Lodging onshore with condition 8503 still in place. The application is invalid. Nothing is assessed, and time is lost while the applicant's visa continues to run down.
• Waiting until after the visa expires. A couple intends to lodge "next month", the visa expires, and the applicant now faces Schedule 3 instead of a straightforward application.
• Assuming a refusal means no partner visa. A person subject to section 48 gives up on a partner visa that remained available, or lodges without the sponsorship form and has the application found invalid.
• Leaving out a previous relationship. A previous marriage, de facto relationship or partner visa application is omitted. The Department already holds the record, and PIC 4020 becomes an issue.
• Treating a New Zealand partner as automatically eligible. The partner is a New Zealand citizen but not an eligible New Zealand citizen under regulation 1.03.
• Ignoring a family member's health. A child or other member of the family unit who is not applying is still required to meet the health requirement in some cases.
• Travelling for a long period after lodging onshore. The Subclass 820 visa can only be granted in Australia. A long absence can lead to refusal.

Each of these mistakes is avoidable with a partner visa eligibility check before lodging.

Partner visa eligibility after lodgement

Partner visa eligibility is not tested only once. Some criteria must be met again when the Department decides. The relationship must still be genuine and continuing. The health, character and integrity criteria are assessed at that point. The sponsorship must be approved and remain in force.

Changes must be reported. Section 104 of the Migration Act requires applicants to tell the Department in writing about changes in circumstances that make an answer in the application incorrect, including where the relationship ends or the family unit changes. The firm's article on Form 1022 change of circumstances explains how to notify these changes.

If the relationship breaks down during processing, partner visa eligibility may continue in limited circumstances, including where family violence has occurred or where there is a child of the relationship with custody or access arrangements. These situations are explained in the articles on what happens if the relationship breaks down during a Subclass 820 application and on the firm's page on family violence provisions for partner visas.

The Department may also send a request for more information during processing. The article on responding to a section 56 request for more information explains how these requests work.

When partner visa eligibility becomes a refusal or review issue

Where the Department decides that an applicant does not meet partner visa eligibility, it refuses the visa and the decision notice states whether review is available. Most onshore partner visa refusals can be reviewed by the Administrative Review Tribunal, provided the applicant is in Australia when the review application is made. Review deadlines are short and strictly applied. Anyone who receives a refusal should obtain advice immediately.

The Tribunal reconsiders the matter on the merits and can remit it to the Department for reconsideration. A remittal is not a grant. It sends the matter back for the Department to decide again, applying the Tribunal's findings. The articles on partner visa refusal appeal options, what to expect at an ART review and when you need a visa appeal lawyer explain the process, and the firm's page on partner visa refusals explains how refusal matters are handled.

Where an application has already been lodged without advice, a second opinion from an immigration lawyer can identify partner visa eligibility problems before the Department does. Applicants who lodged their own application can read about hiring an immigration lawyer after lodging your own visa application, and about appointing a representative with Form 956 or Form 956A.

Should you get advice on partner visa eligibility?

Some couples have a straightforward partner visa eligibility position: a valid marriage, a substantive visa without condition 8503, no refusals and no health or character issues. Others have one or more blockers. The difference between the two is not always obvious to the couple themselves.

The firm's articles on when you need an immigration lawyer for a partner visa, what a partner visa lawyer does, the comparison of a partner visa lawyer and doing it yourself, and the factual comparison of a migration agent or a lawyer for a partner visa can help couples decide. The guide to how to choose a partner visa lawyer in Australia explains what to look for. The article on booking an immigration lawyer consultation explains what happens in a first consultation, and the guide to urgent immigration lawyer advice explains what to prepare when a visa is about to expire.

How My Migration Lawyers assesses your partner visa eligibility

My Migration Lawyers acts in many partner visa matters where partner visa eligibility is in doubt, including complex cases involving condition 8503, applicants without a substantive visa, section 48 bars, earlier refusals and cancellations, previous relationships, health findings and integrity concerns. The firm is capable of handling these matters from the first eligibility review through to lodgement and, where needed, review at the Tribunal.

A partner visa eligibility assessment with the firm follows a set order.

• Confirming the sponsor's status. The firm confirms that the Australian partner is an Australian citizen, permanent resident or eligible New Zealand citizen, and checks the sponsorship limitations before anything else is done.
• Checking the visa position. The firm runs the visa entitlement check itself using the passport details provided, and reads the conditions on the current visa. Where condition 8503, 8534 or 8535 applies, the firm advises whether a waiver request is realistic, or whether an offshore application is the better course.
• Reviewing the immigration history. The firm reviews the client's earlier applications, refusals and cancellations, identifies whether section 48 applies, and confirms whether the sponsorship must be lodged with the application.
• Assessing Schedule 3. Where the client holds no substantive visa, the firm identifies when the last substantive visa ended, whether the timeframe in criterion 3001 has passed, and whether compelling reasons exist. The client's own account and evidence are then presented in the form the law requires.
• Checking the public interest criteria. The firm reviews health, character, debts to the Commonwealth and any earlier answers that may raise PIC 4020, and advises on correcting earlier errors before lodgement.
• Confirming the relationship and marriage. The firm checks that any marriage is recognised under Australian law and that the evidence across the four aspects is consistent with the client's history. The relationship statement is the client's own evidence, reviewed and corrected by the client.

The outcome is clear advice: whether the client meets partner visa eligibility now, what must be fixed first, and which visa fits. The firm's partner visa work is described on the partner visa lawyers page, and its Principal Lawyer, Weiwei Zhang, oversees the partner visa practice. More about the firm is on the about page.

My Migration Lawyers acts for couples across Australia, and consultations are held by video. Clients come to the firm through its pages for partner visa lawyers in Sydney, Parramatta, Melbourne, Brisbane, the Gold Coast, Perth, Adelaide, Canberra and Hobart.

If you are unsure about your partner visa eligibility, or you have a condition, a refusal or a gap in your visa history, book a consultation online, or call 1300 040 300.