Partner Visa Offshore Lodgement: Mistakes That Delay Your Visa

A partner visa offshore lodgement is where most delays begin. Small mistakes made on the day the application is lodged, or in the weeks after it, can add months to processing or lead to a refusal. Most of these mistakes are avoidable once the couple knows where they occur.

This guide is written for the Australian partner, who is usually the sponsor and the person who first seeks advice. It explains the partner visa offshore lodgement mistakes that most often delay a visa: the applicant's location, the wrong pathway, the sponsorship, documents, police certificates, health and biometrics, children, earlier relationships, relationship evidence, inconsistent dates, requests from the Department, notifications, visitor visas and sponsorship limitations. For each one, it explains why the mistake causes delay and how to avoid it.

The applicant does not post a paper form from overseas. A partner visa offshore lodgement is made online through ImmiAccount, and the sponsor lodges a separate online sponsorship. The firm's complete guide to partner visas in Australia explains every subclass. This article focuses on the practical errors that hold an offshore application back.

What is a partner visa offshore lodgement?

A partner visa offshore lodgement is an application for the Subclass 309 and Subclass 100 partner visa made while the applicant is outside Australia, on the basis of a relationship with an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

The application is a single combined application for two visas. The Subclass 309 visa is the temporary (provisional) visa. The Subclass 100 visa is the permanent visa that is usually assessed later. Department policy confirms that the Subclass 309 and Subclass 100 applications are made at the same time, on one combined form, and that the application is made online in ImmiAccount using the form titled "Application for migration to Australia by a partner". The article on how to create an ImmiAccount explains the account itself.

Three parties are involved in every partner visa offshore lodgement:

• The applicant, who is outside Australia and lodges the visa application.
• The sponsor, the Australian partner, who lodges the online "Sponsorship for a Partner to Migrate to Australia" through their own ImmiAccount.
• The Department of Home Affairs, which assesses the relationship, the sponsorship, identity, health, character and the other criteria before it decides.

The onshore equivalent is the Subclass 820 and Subclass 801 partner visa, which is applied for in Australia. The two pathways have different location rules and different review rights, so choosing between them is part of the first decision. The article comparing Subclass 820 and Subclass 801 explains how the onshore stages work, and the Subclass 820 partner visa guide covers the onshore requirements in detail.

Why do partner visa offshore lodgement mistakes cause delays?

Partner visa offshore lodgement mistakes cause delays because the Department cannot decide an application until every criterion is either satisfied or clearly not satisfied, and each missing or inconsistent item usually requires a written request, a response period and a further assessment.

A partner visa is assessed against many separate criteria. These include the relationship, the sponsorship, identity, health, character, the integrity of the information provided and, where children are included, the children's own criteria. Department policy for the Subclass 309 visa lists the public interest criteria the primary applicant must satisfy, including PIC 4001 (character), PIC 4007 (health), PIC 4020 (integrity of information) and PIC 4021 (passport).

A delay usually follows one of three patterns:

• A gap. A document or form is missing. The case officer must ask for it, wait for it and then reassess.
• An inconsistency. A date, address, name or relationship history does not match another record. The case officer must investigate and often seeks an explanation before deciding.
• A wrong foundation. The application was made under the wrong pathway or with the applicant in the wrong place. Some of these mistakes cannot be repaired within the same application.

A well prepared partner visa offshore lodgement anticipates the case officer's questions and answers them in the application itself. That is the main difference between an application that moves and one that waits. The firm's partner visa document checklist sets out what to gather before lodging, and the article on when you need an immigration lawyer for a partner visa explains when advice is worthwhile.

Mistake 1: The applicant is in Australia at lodgement or grant

The most serious partner visa offshore lodgement mistake is lodging while the applicant is in Australia, because the law requires every Subclass 309 applicant to be outside Australia when the application is made.

The location rule at lodgement

Department policy states that all applicants for a Subclass 309 visa must be outside Australia at the time of application, under paragraph 1220A(3)(b) of Schedule 1 to the Migration Regulations 1994. An application lodged while the applicant is in Australia does not meet that requirement. It is not a minor defect that the case officer can overlook.

This catches couples where the applicant is visiting Australia and the couple decide to lodge "while we are together". If the applicant is in Australia, the offshore pathway is not available at that moment. The couple must either wait until the applicant has left Australia or consider the onshore pathway, which has its own rules. The firm's guide to moving from a tourist visa to a partner visa in Australia explains the onshore issues, including visa conditions that can prevent an onshore application.

The location rule at grant

The applicant must also generally be outside Australia when the Subclass 309 visa is granted. Subclause 309.412(1) of Schedule 2 provides that the applicant must be outside Australia at the time of grant, unless the concession in subclause 309.412(2) applies.

That concession was introduced from 27 February 2021 in response to COVID-19 travel restrictions. Department policy explains that it applies only where the application was made before the end of a defined concession period, the applicant was in Australia at some time during that period, and the applicant is in Australia (but not in immigration clearance) when the visa is granted. It is narrow, and a couple preparing a partner visa offshore lodgement today should not assume it applies to them.

How to avoid it

• Confirm the applicant's physical location on the day of lodgement, and keep evidence of it, such as a boarding pass or passport stamp.
• If the applicant plans to visit Australia while the application is pending, understand that the visa usually cannot be granted while the applicant is in Australia. A visit at the wrong time can delay the grant until the applicant leaves.
• If the applicant is already in Australia and the couple want to apply now, take advice on the onshore pathway before deciding.

Mistake 2: Choosing the wrong partner visa pathway

Choosing the wrong pathway is a partner visa offshore lodgement mistake that can lead to refusal, because the spouse, de facto and Prospective Marriage pathways each have different legal requirements that must be met at the time of application.

Married applicants

A married couple applies as spouses. The marriage must be valid for the purposes of Australian migration law. A marriage certificate is required, but it does not end the inquiry. The Department still assesses whether the relationship is genuine and continuing.

De facto applicants

A couple who is not married applies as de facto partners. For partner visas, regulation 2.03A of the Migration Regulations 1994 generally requires the de facto relationship to have existed for at least 12 months immediately before the application is made, unless an exception applies. The firm's guide to the de facto partner visa and the 12 month rule explains the exceptions, and the article on whether you really need 12 months of de facto relationship explains why the period is a period of relationship, not simply of living together.

Lodging as de facto partners before the 12 months is complete, without a recognised exception, is one of the clearest partner visa offshore lodgement errors. The requirement is assessed at the time of application, so later time together does not cure it.

Engaged couples

Engaged couples have two options. Department policy confirms that a Subclass 309 application can be made by an applicant who intends to marry the sponsor, but the marriage must have taken place before the visa is decided, and it must be valid. Alternatively, an engaged couple who intend to marry in Australia may consider the Subclass 300 Prospective Marriage visa. The two routes lead to different outcomes and different timelines.

Partners of New Zealand citizens and same sex couples

A New Zealand citizen can sponsor an offshore partner only if they are an eligible New Zealand citizen as defined in regulation 1.03. Some couples are better served by the Subclass 461 visa for partners of New Zealand citizens. Same sex couples have the same partner visa rights as other couples, and the firm's page on LGBTI and same sex partner visas explains how these applications are handled.

How to avoid it

Decide the pathway before collecting evidence. The pathway determines what must be proved at lodgement. Write down the date the relationship began, the date the couple began living together (if they have), the date of any engagement and the date of any marriage, and check each against the requirement for the chosen pathway.

Mistake 3: The sponsorship is not lodged, linked or approved

A partner visa offshore lodgement can be made without the sponsorship, but the visa cannot be granted unless the sponsorship has been lodged and approved, so a missing or unlinked sponsorship is one of the most common sources of avoidable delay.

How the sponsorship works

Department policy states that the online "Sponsorship for a Partner to Migrate to Australia" is the approved sponsorship form, that it is not prescribed under Schedule 1, and that a valid Subclass 309 application can therefore be made without it. However, subclause 309.222(1) requires that, at the time of decision, the sponsorship must be approved by the Minister and remain in force. The sponsor lodges the sponsorship through their own ImmiAccount, using the details of the visa application so the two can be linked.

Why it causes delay

Where the sponsor has not lodged, or has lodged but the sponsorship has not been linked to the visa application, the case officer cannot finalise the visa. Where the sponsor does not provide the police certificates or the consent the Department requests, the sponsorship can be refused, and the visa application then fails. The Department's own guidance on additional sponsor requirements states that it will refuse the visa application if the sponsor does not provide the checks or does not consent to disclosure of relevant offences, and that it could also refuse if the checks are not provided within a reasonable time.

Martine (Migration) [2023] AATA 690 was a Subclass 309 matter that the Tribunal remitted. The issues recorded were that the applicant failed to provide the sponsorship form 40SP, that it was then provided, and that the Tribunal found the applicant was now sponsored.

The sponsor's own obligations

For partner visas, regulations 1.20KC and 1.20KD allow the Department to refuse to approve a sponsorship where the sponsor has been convicted of a relevant offence and has a significant criminal record in relation to it. Subclause 309.222(2) also requires the sponsor to have consented to the Department disclosing any conviction for a relevant offence to each applicant. The sponsor's police certificates are part of the sponsorship assessment, not the visa applicant's documents.

How to avoid it

• The sponsor should lodge the sponsorship promptly after the visa application, and check in ImmiAccount that it is linked.
• The sponsor should obtain an Australian National Police Check and any foreign police certificates early, so they can be provided with the sponsorship or as soon as possible after it.
• The sponsor should read the consent and disclosure questions carefully and answer them accurately.

A partner visa offshore lodgement where the sponsor's part is complete from the start avoids one of the longest and most frustrating waits. The firm's partner visa lawyers page describes how the firm manages the application and the sponsorship together, and the article comparing a partner visa lawyer with doing it yourself explains where self-lodged applications most often go wrong.

Mistake 4: Identity and civil documents without certified translations

Documents in a language other than English that are lodged without an accurate English translation are a frequent partner visa offshore lodgement mistake, because the case officer cannot rely on a document they cannot read and will ask for a translation before assessing it.

Which documents are affected

The documents most often affected are birth certificates, marriage certificates, divorce or annulment documents, national identity cards, family registers, name change documents and police certificates. The Department's family visa guidance states that where a document is translated in Australia, the translator's National Accreditation Authority of Translators and Interpreters (NAATI) practitioner number should be included. Department policy for sponsor police certificates also notes that foreign police certificates in a language other than English must be accompanied by an accurate English translation.

Why it causes delay

An untranslated document is effectively a missing document. The case officer must write, wait and reassess. Where the translation is poor, it can also create an inconsistency. A name spelled one way in the translation and another way in the passport is a common example.

How to avoid it

• Lodge a clear colour scan of the original document and a complete English translation of every page, including stamps and endorsements.
• Check that names, dates of birth and places of birth in every translation match the passport exactly, or explain any difference.
• Keep the same transliteration of names across every document and every form, including Form 80 where it is requested.

A partner visa offshore lodgement where every identity document is complete and consistent removes one of the simplest reasons for a request.

Mistake 5: Missing police certificates from every country of residence

Missing police certificates are a partner visa offshore lodgement mistake that delays the character assessment, because the applicant must satisfy PIC 4001, and the Department generally cannot complete that assessment until it has a police certificate from each country in which the applicant has lived for the relevant period.

Which countries are required

The Department's family visa guidance states that applicants aged over 17 at the time the visa can be granted will be asked to provide penal checks for any country in which they have resided for 12 months or more since turning 16. Department policy for sponsors applies a similar test: a foreign police certificate for each country, other than Australia, in which the person has resided for a period, or a total period, of at least 12 months, measured over the 10 years before the request or since the person turned 16, whichever is later. Periods of residence are added together, so several shorter stays in the same country can reach 12 months.

An applicant who has spent time in Australia may also need an Australian National Police Check. Department policy states that the Australian check must be a complete disclosure certificate obtained from the Australian Federal Police.

Common errors

• Providing a certificate from the current country only, and overlooking a country where the applicant studied or worked for a year or more.
• Providing a certificate that has expired by the time the case officer assesses it.
• Providing a local or regional certificate where the country issues a national one.
• Not explaining why a certificate cannot be obtained from a particular country.

CRAFT (Migration) [2022] AATA 1100 was a Subclass 309 matter that the Tribunal remitted. The issue recorded was that a police certificate from Ukraine was provided.

How to avoid it

Before the partner visa offshore lodgement, prepare a residence history for the applicant and for the sponsor. List every country, with dates. Mark every country where the total time reaches 12 months in the relevant period. Start applying for those certificates early, because some countries take a long time to issue them. Where a country will not issue a certificate, keep the evidence of the attempt and explain it in writing.

A character concern itself is a separate matter from a missing certificate. Where the applicant or the sponsor has a criminal record in any country, advice should be obtained before lodging. The firm's visa cancellations page describes the character provisions the Department applies.

Mistake 6: Health examinations and biometrics not completed when requested

Health examinations and biometrics that are not completed when the Department asks for them delay a partner visa offshore lodgement, because the applicant must satisfy the health criterion and the Department must be able to confirm the applicant's identity before the visa can be granted.

Health examinations

Department policy lists PIC 4007 among the health criteria for the Subclass 309 visa. Members of the family unit who are not applicants may also need to satisfy health requirements under subclause 309.228(2), unless the delegate is satisfied that it would be unreasonable to require it.

The Department's family visa guidance states that health examinations have a limited validity period and that applicants should not undertake them until the Department asks. It also states, in its partner visa guidance, that the results of the health assessment are valid for 12 months from the time the examinations are completed. Two opposite mistakes follow. Some applicants complete examinations too early, the results expire, and the examinations must be repeated. Others ignore a request, and the application stalls.

Housayri (Migration) [2023] AATA 1011 was a Subclass 309 matter that the Tribunal remitted. The issues recorded were the health examination and eMedical cases submitted.

Biometrics

The Department may ask the applicant to provide personal identifiers, such as a facial photograph and fingerprints, at a collection centre. The Department's family visa guidance asks applicants to have requested biometric data collected quickly to avoid processing delays.

PHENG (Migration) [2020] AATA 4742 was a Subclass 309 matter that the Tribunal remitted. The issues recorded were evidence of personal identifiers and biometrics collected.

How to avoid it

• Read every ImmiAccount message and every email from the Department as soon as it arrives.
• Book health examinations and biometrics promptly when requested, and keep the confirmation.
• Where a collection centre is far away or appointments are scarce, tell the Department in writing and keep evidence of the attempts.

A partner visa offshore lodgement that stalls at this stage is usually waiting on the applicant, not the Department.

Mistake 7: Including children without the other parent's consent

Including a child under 18 in a partner visa offshore lodgement without the consent of every person who can lawfully decide where the child lives is a mistake that can delay or defeat the application, because the child must satisfy specific public interest criteria and, under Department policy, the main applicant cannot be granted the visa if a child included in the application does not.

What the law requires

Clause 309.229 provides that the primary applicant cannot be granted a Subclass 309 visa if a member of the family unit under 18 who made a combined application does not satisfy PIC 4015 and PIC 4016. Secondary applicants under 18 must satisfy PIC 4017 and PIC 4018 under clause 309.326. In general terms, these criteria require that the law of the child's home country permits the child's removal, or that each person who can lawfully determine where the child lives consents to the grant, or that the grant is consistent with an Australian child order. They also require that there is no compelling reason to believe the grant would not be in the child's best interests.

Haynes (Migration) [2020] AATA 3293 was a Subclass 820 matter that the Tribunal remitted. The issues recorded were a dependent child, permission to migrate under the law of the home country, and the parents' consent. Although it was an onshore matter, the same issue arises in a partner visa offshore lodgement that includes a child.

Common errors

• Assuming that a parent who has no contact with the child does not need to consent.
• Lodging a consent that is not properly witnessed, or a court order that does not deal with relocation.
• Not explaining why the other parent's consent cannot be obtained.

How to avoid it

Obtain the other parent's written consent, or a court order dealing with the child's relocation, before the partner visa offshore lodgement. Where neither is possible, take advice on what the law of the child's home country allows and what evidence will satisfy the Department.

Mistake 8: Previous relationships and divorces not evidenced

Failing to document earlier marriages and relationships is a partner visa offshore lodgement mistake that delays assessment, because the Department must be satisfied that a marriage is valid and that the couple's relationship is to the exclusion of all others.

Why previous relationships matter

A marriage is not valid for migration purposes if either party was still married to someone else. A divorce certificate, decree or equivalent document is therefore essential where either partner has been married before. A de facto relationship must also be exclusive, so the timing of the end of an earlier relationship matters.

Why it causes delay

Where the application form discloses a previous marriage, but the divorce document is missing, the case officer will ask for it. Where the form does not disclose an earlier relationship, and the Department finds it in an earlier visa application, a much more serious problem arises. That is an integrity problem, discussed under Mistake 10.

How to avoid it

• List every previous marriage and significant relationship for both partners, with dates.
• Obtain divorce documents, death certificates or annulment orders, with translations where needed.
• Make sure the start date of the current relationship comes after the end of any earlier relationship, or explain any overlap honestly.

Where the sponsor has sponsored a previous partner, the sponsorship limitations discussed under Mistake 14 must also be checked before the partner visa offshore lodgement.

Mistake 9: Relationship evidence that does not explain time apart

Relationship evidence that does not explain why the couple has lived apart is the most common substantive weakness in a partner visa offshore lodgement, because the applicant is overseas, the couple has usually spent periods apart, and the Department must be satisfied that any separation is temporary.

The legal test

Section 5F of the Migration Act 1958 defines a spouse and section 5CB defines a de facto partner. Both definitions require a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, and that the couple live together or do not live separately and apart on a permanent basis. Regulations 1.15A and 1.09A require the Department to consider the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the couple's commitment to each other.

In a partner visa offshore lodgement, the household aspect is often the weakest, because the couple is currently apart. That is expected. What the Department needs is an explanation of why the couple is apart, evidence that the separation is temporary, and evidence of the plan to live together in Australia.

What the evidence should show

• Time together. Passport stamps, travel bookings and accommodation records for every visit.
• Contact while apart. A representative sample of messages and call logs across the whole relationship, not hundreds of pages from one month.
• Financial support. Money transfers, shared expenses and joint commitments.
• Family and social recognition. Evidence that families and friends know of and recognise the relationship, including Form 888 statements from Australian citizens or permanent residents.
• The plan. Evidence of concrete steps toward living together in Australia, such as housing, employment or study enquiries.

The firm's articles on how to prove a genuine relationship, preparing evidence of a genuine relationship and the partner visa evidence checklist explain the four aspects in detail. The article on Form 888 example answers explains what supporting statements should contain.

The relationship statement

The relationship statement is the applicant's and the sponsor's own evidence. It should explain how the couple met, how the relationship developed, why they have lived apart, how they have maintained the relationship and what they plan to do. Every date in it must match the documents. The firm's guide to the partner visa relationship statement explains its structure.

A partner visa offshore lodgement where the evidence tells a consistent story, with the separation explained, is far easier for a case officer to decide than one that leaves the officer to piece the history together. Where a couple's evidence is genuinely limited, or the history is complicated, the article on why partner visas get refused explains the weaknesses the Department most often identifies.

Can mistakes be fixed after a partner visa offshore lodgement?

Yes. Most mistakes in a partner visa offshore lodgement can be corrected while the application is still being processed, because further documents and information can generally be provided until the Department makes its decision.

The exceptions are mistakes about the foundation of the application. If the applicant was in Australia when the application was made, or a de facto couple applied before the 12 month requirement was met without an exception, providing more evidence will not change the facts at the date of application. Those problems need a different solution, and advice should be obtained before anything further is lodged.

Most other gaps can be repaired:

• Missing documents can be uploaded through ImmiAccount at any time before the decision.
• Incorrect answers should be corrected in writing, with an explanation, as discussed under Mistake 12.
• Weak relationship evidence can be strengthened with further evidence and supporting statements.
• A missing sponsorship can be lodged by the sponsor, provided it is approved by the time of decision.

The sooner a problem is identified, the easier it is to fix. Many couples prepare their own partner visa offshore lodgement and then seek advice when a request arrives or when processing seems slow. The firm's article on hiring an immigration lawyer after lodging your own application explains how a lawyer takes over a file already lodged, and the guide to Form 956 and Form 956A explains how a representative is appointed so the Department corresponds with them.

A review of the file by a lawyer before the Department raises a concern is usually more useful than a response after it. The article on getting a second opinion from an immigration lawyer explains what such a review involves, and the guide to what an immigration lawyer does explains the wider role. Where a deadline from the Department is close, the article on urgent immigration lawyer advice sets out what to prepare.

Sponsors who want to understand the role of a lawyer specifically in partner matters can read the guide to choosing a partner visa lawyer in Australia. The common refusal grounds discussed in the article on why Subclass 820 partner visas are refused are also, in substance, the grounds most often raised in a partner visa offshore lodgement.

Mistake 10: Dates that conflict with earlier visa applications

Dates, addresses and relationship details that conflict with earlier visa applications are a partner visa offshore lodgement mistake that can lead to refusal, not just delay, because the Department compares the new application with its own records and the applicant must satisfy PIC 4020, the integrity criterion.

Why earlier applications matter

Many applicants have applied for an Australian visa before, often a visitor or student visa. Those applications asked questions about relationship status, employment, addresses, travel history and family members. The Department keeps those answers. If an earlier visitor visa application said "single" on a date that the partner visa application now describes as part of a de facto relationship, the case officer will want to know why.

What PIC 4020 covers

Department policy lists PIC 4020 among the criteria for the Subclass 309 visa. In general terms, PIC 4020 is concerned with bogus documents and information that is false or misleading in a material particular, given in the current application or in certain earlier applications. It can also lead to a period during which further visas cannot be granted. A waiver is available in limited circumstances.

Burns (Migration) [2022] AATA 1657 was a Subclass 309 matter that the Tribunal remitted. The issues recorded were incorrect information in the visa application, countries of previous residence, and compelling or compassionate circumstances.

How to avoid it

• Before the partner visa offshore lodgement, gather copies of every earlier Australian visa application made by the applicant, where available.
• Compare relationship status, addresses, employment and travel answers across every application.
• Where an earlier answer was wrong, or where circumstances changed, explain it in writing with the new application rather than leaving the case officer to find it.

Honesty about an earlier inconsistency is almost always better than silence. An explained difference is a question. An unexplained difference can look like a deliberate false statement.

Mistake 11: Not answering Department requests within the time given

Failing to answer a request from the Department within the time it specifies is a partner visa offshore lodgement mistake that can lead to the application being decided on the information already held, which often means refusal.

Section 56 requests

Under section 56 of the Migration Act 1958, the Department may invite the applicant to give additional information. The invitation states a period for the response. The firm's guide to responding to a section 56 request explains how to approach it.

Section 57 natural justice letters

Under section 57, the Department must generally give the applicant particulars of certain adverse information that would be the reason, or part of the reason, for refusal, and invite a comment on it. This is often called a natural justice letter. A section 57 letter in a partner visa offshore lodgement often concerns relationship evidence, inconsistent dates or an earlier visa application. The firm's guide to responding to a section 57 natural justice letter for a partner visa explains what a response should do.

Why late or weak responses cause harm

The response period is short and strictly applied. If no response is received, the Department may decide the application without it. A response that only says "our relationship is genuine" without dealing with the specific concern rarely helps.

How to avoid it

• Make sure the email address in ImmiAccount is monitored, and check junk folders.
• Read the request carefully and identify exactly what the Department is concerned about.
• Answer each concern with evidence, not general statements.
• If more time is genuinely needed, ask in writing before the period ends and give the reason.

Mistake 12: Not updating the Department after a partner visa offshore lodgement

Not telling the Department about changes after a partner visa offshore lodgement is a mistake because the Migration Act requires applicants to notify changes in circumstances that make an answer in the application incorrect, and a failure can later be treated as giving incorrect information.

What must be notified

Department policy for the Subclass 309 visa notes that section 104 of the Migration Act requires applicants to inform the Department in writing of changes in their circumstances if a change means that an answer on the application form is incorrect. Policy gives examples, including the relationship ending and changes to the family unit through birth, death or a change in relationship status. A new address, a new passport, a change of employment, a new country of residence or a new criminal charge may also need to be notified, depending on the questions answered.

Which form to use

Form 1022 is the Department's form for notifying a change in circumstances. Form 1023 is used to notify the Department of an incorrect answer that was given in the application. The firm's guide to Form 1022 change of circumstances explains when it is required. A new passport can usually be updated through ImmiAccount.

How to avoid it

Keep a simple record of every answer given in the application. When anything changes, check whether an answer is now wrong. If it is, notify the Department promptly. Where the change affects the relationship itself, such as a separation, obtain advice before notifying, because the consequences can be significant. The firm's article on what happens when a relationship breaks down during a partner visa application explains the onshore position, and where family violence has occurred, the firm's family violence partner visa page explains the provisions that may apply.

Mistake 13: Visiting Australia on a visitor visa while the application is pending

Visiting Australia while a partner visa offshore lodgement is being processed is not prohibited, but it becomes a mistake when the applicant does not understand the visitor visa rules, because a visitor visa can be refused, and a Subclass 309 visa generally cannot be granted while the applicant is in Australia.

The issues

• The visitor visa itself. The applicant must meet the visitor visa criteria, including that the stay is genuinely temporary. A pending partner visa does not guarantee that a visitor visa will be granted.
• Visa conditions. Visitor visas may carry conditions, such as a no further stay condition, that affect what the applicant can do in Australia. The firm's article on applying for a Subclass 820 visa with condition 8503 explains that condition.
• Grant location. Under subclause 309.412(1), the applicant must generally be outside Australia when the Subclass 309 visa is granted. If the case officer is ready to decide while the applicant is visiting, the grant may wait until the applicant leaves.
• Switching to an onshore application. Some couples decide during a visit to apply onshore instead. That raises separate questions about visa conditions and bridging visas, explained in the firm's guide to bridging visas in Australia.

How to avoid it

Plan visits around the processing of the partner visa offshore lodgement. Answer the visitor visa questions accurately, including the question about the pending partner visa. Keep the trip short and genuine, and tell the Department if the applicant's contact details change while travelling.

Mistake 14: Sponsorship limitations not checked

Failing to check whether the sponsor is subject to a sponsorship limitation is a partner visa offshore lodgement mistake that can lead to refusal, because regulation 1.20J limits how many partners a person may sponsor and how soon.

What regulation 1.20J provides

Department policy summarises regulation 1.20J as follows. A person may have at most two approved partner or prospective spouse sponsorships. A person who has sponsored a partner cannot have another sponsorship approved until at least five years after the first visa application was made. A person who was themselves sponsored as a partner cannot sponsor a partner until at least five years after their own visa application was made. These limitations may be waived where there are compelling circumstances affecting the sponsor.

The firm's pages on partner visa sponsorship limitations and when a sponsor cannot sponsor a partner visa explain the rule and the waiver.

Other sponsorship bars

Department policy also identifies regulation 1.20KA (certain Contributory Parent visa holders), regulation 1.20KB (sponsors with convictions or unresolved charges for certain offences where an applicant is under 18) and regulations 1.20KC and 1.20KD (relevant offences and significant criminal record) as possible limitations on a Subclass 309 sponsor.

How to avoid it

Before the partner visa offshore lodgement, the sponsor should list every previous partner sponsorship and every partner visa they were granted themselves, with dates. Where a limitation applies, the waiver submission should be prepared and lodged with the sponsorship, not after a refusal.

What do Tribunal decisions show about partner visa offshore lodgement errors?

Tribunal decisions show that many partner visa offshore lodgement refusals turn on a missing or defective item, not on the genuineness of the relationship, and that the item must still be supplied on review.

The decisions below come from Subclass 309 and related matters that the Tribunal remitted to the Department. They are described only by the issues recorded:

• Martine (Migration) [2023] AATA 690: a Subclass 309 matter that the Tribunal remitted. The issues recorded were the applicant's failure to provide the sponsorship form 40SP, the form then being provided, and the Tribunal finding that the applicant was now sponsored.
• Burns (Migration) [2022] AATA 1657: a Subclass 309 matter that the Tribunal remitted. The issues recorded were incorrect information in the visa application, countries of previous residence, and compelling or compassionate circumstances.
• PHENG (Migration) [2020] AATA 4742: a Subclass 309 matter that the Tribunal remitted. The issues recorded were evidence of personal identifiers and biometrics collected.
• Housayri (Migration) [2023] AATA 1011: a Subclass 309 matter that the Tribunal remitted. The issues recorded were the health examination and eMedical cases submitted.
• CRAFT (Migration) [2022] AATA 1100: a Subclass 309 matter that the Tribunal remitted. The issue recorded was a police certificate from Ukraine being provided.
• Haynes (Migration) [2020] AATA 3293: a Subclass 820 matter that the Tribunal remitted. The issues recorded were a dependent child, permission to migrate under the law of the home country, and the parents' consent.

Each decision turned on its own facts. A partner visa offshore lodgement that is complete at the start avoids the refusal, the review application and the further delay that follows.

What happens if a partner visa offshore lodgement is refused?

If a partner visa offshore lodgement is refused, the decision can generally be reviewed by the Administrative Review Tribunal, and for an applicant who is outside Australia at the time of the decision, the review application must be made by the Australian sponsor.

Department policy states that for Subclass 309 applicants located outside Australia at the time of decision, review rights are available under subsection 338(5) of the Migration Act, and the application for review must be made by the sponsor, who may be in or outside Australia. The time limit for applying is short and strictly applied, and it is stated in the refusal letter.

On review, the Tribunal considers the application again on the evidence before it at the time of its decision. Missing documents can be provided, and inconsistencies can be explained. The firm's partner visa refusals page and visa refusals and ART appeals page describe that work. The articles on partner visa appeal options, what to expect at an ART review and when you need a visa appeal lawyer explain the process. Where the Tribunal affirms a refusal and there is an error of law, the firm's judicial review page explains the next step. For couples considering a fresh application after a refusal, the article on applying for a partner visa after a visa refusal explains the issues.

Partner visa offshore lodgement advice across Australia

My Migration Lawyers advises Australian sponsors on partner visa offshore lodgement matters nationally, with consultations by video. The firm acts for sponsors who live in Sydney, Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra, Hobart and Parramatta.

For wider migration matters, the firm also acts as immigration lawyers in Sydney, Melbourne, Brisbane and Perth. Sponsors comparing options may find the guides to partner visa lawyers in Sydney, partner visa lawyers in Melbourne, how to choose a partner visa lawyer in Australia and booking an immigration lawyer consultation useful.

How My Migration Lawyers helps with a partner visa offshore lodgement

My Migration Lawyers acts in many partner visa matters where the applicant is overseas, including complex matters involving earlier visa applications with inconsistent answers, children from earlier relationships, sponsorship limitations, police certificates from several countries and applications that have already stalled or been refused. The firm deals with complex partner visa offshore lodgement matters regularly and is capable of handling them from the first advice to the decision, and on review where needed.

The firm's work on a partner visa offshore lodgement is specific to the mistakes described in this article:

• Pathway and location. The firm confirms whether the couple should apply as spouses, as de facto partners or for a Subclass 300 visa, checks the 12 month requirement and its exceptions, and confirms that the applicant will be outside Australia at lodgement.
• Sponsorship. The firm prepares the sponsor's online sponsorship, checks regulation 1.20J and the other sponsorship bars, and prepares any waiver submission at the start.
• Document and character audit. The firm builds a residence history for the applicant and the sponsor, identifies every police certificate required, and checks every identity and civil document and translation for consistency.
• Earlier applications. The firm compares the new application with the applicant's earlier Australian visa applications, where available, and addresses any difference in writing before the Department raises it.
• Children. The firm identifies the consent or court order required for each child included, and the evidence that will satisfy the Department.
• Relationship evidence. The relationship statement is the client's own evidence. The firm takes the couple's account, presents it in the form the law requires, and the couple review and correct every detail before it is signed. The firm then selects and indexes the evidence against the four aspects of the relationship, including the explanation of time apart.
• Requests and notifications. The firm responds to section 56 requests and section 57 letters, and prepares Form 1022 and Form 1023 notifications where needed.

The firm's partner visa practice is described on its partner visa lawyers page. Its Principal Lawyer, Weiwei Zhang, oversees that practice. More about the firm is on the about page.

If your partner is overseas and you want the partner visa offshore lodgement prepared correctly from the start, or reviewed before a problem becomes a refusal, book a consultation online. You can also call 1300 040 300.