Key Takeaways
- The partner visa sponsor 5 years calculation runs from the date the earlier partner or fiancé visa application was made to the date the Department decides the current sponsorship, not to the date the new application is lodged.
- The start date is the earlier application date. It is not the date that earlier visa was granted, the date the old relationship ended, the date of divorce or the date the sponsor became a citizen.
- Because sponsorship is a time of decision criterion, a sponsor who is inside the five years at lodgement can be outside it by the time the decision is made.
- The Administrative Review Tribunal decides on the facts at the time of its own decision, so five years that end during review can be taken into account, and several Tribunal decisions have been remitted on that basis.
- The earlier lodgement date should be proved from records, such as the ImmiAccount acknowledgement or the Department file obtained by a freedom of information request, not from memory.
- Where the five years have not ended, the sponsor can still lodge, but the application should include a compelling circumstances submission in case the decision is made sooner than expected.
The partner visa sponsor 5 years calculation is the date test that decides whether a sponsor with an earlier partner or fiancé sponsorship can have a new sponsorship approved. The partner visa sponsor 5 years calculation runs from the date the earlier visa application was made to the date the Department decides the current sponsorship. Getting either date wrong can mean a refusal that was avoidable, or months of waiting that were never needed.
This guide is only about the dates. It explains which date starts the period, which date ends it, how the Department's own example works, how the period can end during processing or during review, the most common miscalculations, how to prove the earlier lodgement date, and how to decide whether to lodge now or wait. A partner visa sponsor 5 years calculation is only needed if the sponsor is caught by regulation 1.20J(1)(b) or (c) of the Migration Regulations 1994. The firm's page on partner visa sponsorship limitations and the hub article on when a sponsor cannot sponsor a partner visa explain who is caught.
In short, regulation 1.20J(1)(b) applies to a sponsor who has sponsored a partner or fiancé before, and regulation 1.20J(1)(c) applies to a sponsor who was sponsored as a partner or fiancé. Each limb has a five year period. The status of the sponsor does not change the dates, whether the sponsor is an Australian citizen sponsor or a permanent resident sponsor. The partner visa sponsor 5 years calculation works the same way for both, but the start date is different. The complete guide to partner visas in Australia sets out the wider pathways.
What is the partner visa sponsor 5 years calculation?
The partner visa sponsor 5 years calculation measures the time between the date the earlier partner or fiancé visa application was made and the date the current sponsorship is approved or refused, and the sponsorship can be approved without a waiver only if at least five years separate those two dates.
The Department's policy instruction on regulation 1.20J states this directly. Where the sponsor has sponsored another person, the five year period is calculated from the date on which the first visa application was made to the date of approval or refusal of the current sponsorship. Where the sponsor was sponsored, the period is calculated from the date the sponsor's own visa application was made to the date of approval or refusal of the current sponsorship.
Two features of the partner visa sponsor 5 years calculation surprise most people. The first is that it starts with an application, not a grant. The second is that it ends with a decision, not a lodgement. Almost every miscalculation comes from reversing one of those two points.
The calculation does not stand alone. It sits inside the sponsorship assessment for a Subclass 820, Subclass 309 or Subclass 300 application. The article on the partner visa sponsorship assessment explains that process. If the five years have not passed when the decision is made, the sponsorship can only be approved if the decision maker finds compelling circumstances affecting the sponsor under regulation 1.20J(2).
Which date does the partner visa sponsor 5 years calculation start from?
The partner visa sponsor 5 years calculation starts from the date the earlier visa application was made: the former partner's application under limb (b), or the sponsor's own application under limb (c).
The start date under regulation 1.20J(1)(b)
Where the sponsor has sponsored a partner or fiancé before, the start date is the date that earlier visa application was made. It is the date the former partner applied for the Subclass 820, Subclass 309 or Subclass 300 visa that the sponsor supported, provided that sponsorship resulted in the grant of a visa. A sponsorship connected to a refused application does not count under Department policy, so a refused application has no start date for this purpose.
The start date under regulation 1.20J(1)(c)
Where the sponsor was sponsored, the start date is the date the sponsor's own partner or fiancé visa application was made. This is the date the sponsor applied, years ago, for the visa that brought them to Australia or let them stay as a partner. It is not the date they later became a permanent resident or a citizen. The article on the partner visa sponsor who recently became a permanent resident discusses this group more broadly.
When is an application "made"?
For a partner visa sponsor 5 years calculation, the start date is the day the earlier application was made, which is usually the day it was validly lodged with the Department. For an online application, that is generally the lodgement date recorded in ImmiAccount. For an older paper application, it is generally the date the Department received it. These are not always the dates people remember. A couple may remember the day they started the forms, the day they paid, or the day they received the acknowledgement. The partner visa sponsor 5 years calculation should use the lodgement date shown in the records. The article on partner visa application status and the FAQ on how to check partner visa status explain where those records can be seen.
Dates that do not start the partner visa sponsor 5 years calculation
Many dates feel important to a sponsor, but none of them starts the partner visa sponsor 5 years calculation:
- the date the earlier visa was granted;
- the date the earlier sponsorship was lodged or approved;
- the date of the earlier marriage or the start of the earlier de facto relationship;
- the date of separation or divorce;
- the date the former partner arrived in Australia or left it;
- the date the permanent Subclass 801 or Subclass 100 visa was granted; and
- the date the sponsor became an Australian citizen.
Each of these dates is usually later than the application date. Counting from any of them makes the sponsor wait longer than the law requires. In some cases that error costs a couple a year or more. The article on a partner visa after divorce deals with divorce as a separate issue, and the FAQ on when a person can apply for citizenship after a partner visa deals with citizenship timing, which is a different calculation altogether.
Two-stage and combined applications
The temporary and permanent partner visas are applied for together. A Subclass 820 and Subclass 801 application is one combined application, and a Subclass 309 and Subclass 100 application is one combined application. Department policy counts a two-stage sponsorship once, because there is no separate sponsorship approval for the permanent stage. For the partner visa sponsor 5 years calculation, the relevant date is the date that combined application was made. The later eligibility for the permanent stage does not create a new start date. The article on the partner visa two-stage process and the guide to Subclass 820 versus Subclass 801 explain the two stages.
A fiancé application followed by a partner application
Some histories involve two applications. A fiancé applies for a Subclass 300 visa, marries the sponsor, and later applies for a Subclass 820 visa. Department policy refers to the date the first visa application was made. A sponsor with this history should identify both dates. If five years have passed from both, there is no difficulty. If five years have passed only from the earlier Subclass 300 application, the sponsor should obtain advice on their exact history before relying on the earlier date. The FAQ on what happens after marriage on a Prospective Marriage visa explains how the two applications connect.
Which date does the partner visa sponsor 5 years calculation end on?
The partner visa sponsor 5 years calculation ends on the date the current sponsorship is approved or refused, which is the date the visa decision is made, not the date the new visa application or sponsorship was lodged.
Why the lodgement date does not end the period
Sponsorship approval is a time of decision criterion. Department policy explains that although a sponsorship must be held at the time of application, it is only at the time of decision that it must have been approved. Under subclause 820.221(4), for example, the sponsorship must be approved and remain in force at the time of decision. The same structure applies to the Subclass 309 and Subclass 300 visas. That is why the end date of the partner visa sponsor 5 years calculation is the decision date.
The practical effect is significant. A sponsor who lodges four years and nine months after the earlier application has not failed the test at lodgement. The test has not yet been applied. If the decision is made after the five years end, the limitation no longer stands in the way.
The sponsorship decision sits inside the visa decision
There is no separate decision letter sent to the sponsor about the sponsorship. The sponsorship is decided as part of the visa decision. The article on when partner visa sponsorship approval is decided and the article on partner visa sponsorship lodgement explain the sequence. In practice the end date of the partner visa sponsor 5 years calculation is the date on the decision record for the visa.
How "at least five years" is counted
Regulation 1.20J requires at least five years to have passed. A partner visa sponsor 5 years calculation that comes down to the last few days is risky. Whether the fifth anniversary itself is enough, or the day after is needed, is a technical question about how the period is counted. It should never be left to chance. The safe approach is to plan for the decision to fall clearly after the fifth anniversary of the earlier application date, and to have a compelling circumstances submission ready in case it does not.
How does the Department's own example work?
The Department's own example shows a partner visa sponsor 5 years calculation in which the sponsor was inside the five years when the new application was lodged but outside it when the decision was made, so the sponsorship could be approved.
The example in the policy instruction runs as follows:
- an Australian citizen sponsored a spouse, and the spouse application was made on 1 January 1994;
- the sponsorship was approved and a Subclass 100 visa was granted;
- the marriage broke down, and the citizen sponsored a new partner for a Subclass 300 Prospective Marriage visa, with the application made on 1 October 1998, which was four years and nine months after the first application; and
- processing took six months, and the decision was made on 1 March 1999.
By 1 March 1999, five years had passed since 1 January 1994. The policy concludes that the current sponsorship may be approved.
Three lessons come from this example. First, the start date was the earlier application date, 1 January 1994, not the later grant of the Subclass 100 visa. Second, the new lodgement date, 1 October 1998, did not decide the outcome. Third, the end date was the decision date, 1 March 1999. Every partner visa sponsor 5 years calculation should follow the same three steps.
Worked examples of the partner visa sponsor 5 years calculation
The following hypothetical examples show how the partner visa sponsor 5 years calculation works in common situations. They are illustrations only. Each real case depends on the actual dates in the records.
Example 1: a sponsor who sponsored a former wife onshore
Consider a sponsor whose former wife applied for a Subclass 820 visa on 10 March 2022. The Subclass 820 was granted in 2023 and the couple separated in 2025. The sponsor now has a new partner overseas, who lodges a Subclass 309 application on 1 August 2026.
The start date is 10 March 2022, the earlier application date. Five years end on 10 March 2027. If the Subclass 309 decision is made after that date, the partner visa sponsor 5 years calculation is satisfied. If the decision is made before it, the sponsorship can only be approved under the compelling circumstances waiver.
The common mistake in this example is to count from the 2023 grant, or from the 2025 separation. A sponsor counting from the separation would believe they had to wait until 2030. That would be wrong by three years.
Example 2: a sponsor who was sponsored and is now a citizen
Consider a sponsor who applied for their own Subclass 309 visa on 15 May 2021. They were granted the Subclass 309, later the Subclass 100, separated in 2024 and became an Australian citizen in 2025. They now sponsor a new partner who is in Australia, and the new partner lodges a Subclass 820 application on 1 February 2026.
This is a limb (c) partner visa sponsor 5 years calculation. The start date is 15 May 2021, the sponsor's own application date. Five years end on 15 May 2026. Citizenship in 2025 is irrelevant to the dates. If the Subclass 820 decision is made after 15 May 2026, the limitation no longer prevents approval.
The common mistake here is to count from the Subclass 100 grant or from the citizenship ceremony. Either error would make the sponsor think they had to wait years longer. The article on the partner visa sponsor who recently became a citizen explains why citizenship does not reset the limitation.
Example 3: a sponsor whose former fiancé never married them
Consider a sponsor whose former fiancé applied for a Subclass 300 visa on 1 September 2022. The visa was granted in 2023. The fiancé came to Australia, but the couple never married and the fiancé left. The sponsor now sponsors a new fiancé, who applies for a Subclass 300 visa on 1 March 2027.
Department policy says a fiancé sponsorship counts where the visa was granted but the marriage never took place. The start date is 1 September 2022. Five years end on 1 September 2027. At lodgement the sponsor is six months short. The partner visa sponsor 5 years calculation will be satisfied if the decision is made after 1 September 2027. The date the former fiancé left Australia has no role in the calculation. The FAQ explaining the Subclass 300 Prospective Marriage visa and the FAQ on what happens if a couple break up on a Prospective Marriage visa give background on that visa.
Example 4: a sponsor caught by both limbs
Consider a sponsor who applied for their own Subclass 820 visa on 1 July 2018. After that relationship ended, the sponsor sponsored a second partner, whose Subclass 309 application was made on 1 November 2022 and later granted. That relationship has also ended. The sponsor now has a third partner.
There are two partner visa sponsor 5 years calculation results here. Under limb (c), five years from 1 July 2018 ended on 1 July 2023. Under limb (b), five years from 1 November 2022 end on 1 November 2027. Both limbs must be satisfied, so the later date controls. The new sponsorship cannot be approved before 1 November 2027 without a waiver.
The lifetime limit must also be checked. Under Department policy, being sponsored does not use up one of the sponsor's two lifetime sponsorships, so the earlier Subclass 309 sponsorship is the sponsor's first. The FAQ on whether a person can sponsor more than one partner gives a short answer on the lifetime limit.
Example 5: a refusal before the five years end, then review
Consider a sponsor whose former partner applied for a Subclass 820 visa on 1 June 2022. The sponsor's new partner lodges a Subclass 820 application on 1 June 2026, with a compelling circumstances submission. The Department decides the application on 1 March 2027, before five years have passed, does not accept the waiver, and refuses the visa.
The review application is lodged within 28 days. The Tribunal hears the matter after 1 June 2027. By the time of the Tribunal's decision, the partner visa sponsor 5 years calculation is satisfied. The Tribunal can take that into account, because it decides on the facts at the time of its own decision. The later sections explain how Tribunal decisions have dealt with this situation.
A step-by-step method for the partner visa sponsor 5 years calculation
A reliable partner visa sponsor 5 years calculation follows the same six steps every time, and each step should be supported by a document rather than memory.
- List every relevant earlier application. Include every partner, spouse, de facto, interdependency or fiancé application the sponsor supported, and every such application the sponsor made for themselves. The article on a partner visa sponsor with their own visa history problems shows how wide a sponsor's history can be.
- Remove applications that do not count. Under Department policy, a sponsorship connected to a refused application does not count for limb (b). A sponsor's own refused or withdrawn application needs specific advice before it is set aside.
- Find the application date for each one. Use ImmiAccount, acknowledgement letters or the Department file. Do not use the grant date.
- Add five years to each application date. This gives the date on which each limb stops applying.
- Take the latest of those dates. That is the date after which the limitation in regulation 1.20J(1)(b) and (c) no longer prevents approval.
- Compare it with the likely decision date. If the decision is likely to be made after that date, the partner visa sponsor 5 years calculation is likely to be satisfied. If it may be made earlier, a waiver submission is needed.
This method also shows the sponsor what to put in the application. A short, accurate chronology of the sponsor's migration history, with the evidence for each date, helps the decision maker do the same partner visa sponsor 5 years calculation and reach the same answer. The article on partner visa sponsor documents and the guide to the Form 40SP sponsorship form explain what the sponsor provides. The article on partner visa evidence organisation explains how to index supporting documents.
What if the sponsor has more than one earlier application?
Where a sponsor has more than one relevant earlier application, a separate partner visa sponsor 5 years calculation is done for each one, and the latest end date controls.
This happens more often than people expect. A sponsor may have been sponsored and may also have sponsored. A sponsor may have sponsored two earlier partners. Each relevant earlier application must be at least five years before the decision on the current sponsorship. The most recent earlier application is usually the one that decides the outcome, because its five years end last.
A sponsor in this position must also deal with the lifetime limit in regulation 1.20J(1)(a). A sponsor with two earlier approved partner or fiancé sponsorships that resulted in a visa grant cannot have a third approved without a waiver, however much time has passed. A partner visa sponsor 5 years calculation does not fix a lifetime limit problem. The FAQ answering whether a lawyer can help if a sponsor has sponsored a partner before is a short starting point.
Tribunal decisions show how these histories arise. In 1700695 (Migration) [2019] AATA 3133, a Subclass 309 matter, the decision was remitted to the Department on recorded issues that the sponsor had previously sponsored two people, that less than five years had passed since the last sponsorship, and that there were compelling reasons to approve. In Luangkratok (Migration) [2022] AATA 89, a Subclass 820 matter, the decision was remitted on recorded issues of compelling circumstances and that the sponsor had previously sponsored a Partner visa applicant within five years of the new application.
What happens if the five years end during processing?
If the five years end before the Department makes its decision, the partner visa sponsor 5 years calculation is satisfied and the limitation in regulation 1.20J(1)(b) or (c) no longer prevents approval of the sponsorship.
This follows from the time of decision rule. The Department applies the test on the day it decides. A sponsor who was four years and six months past the earlier application at lodgement, and five years and two months past it at decision, meets the requirement. No waiver is needed.
The difficulty is that no sponsor controls the decision date. Processing times change. Some applications are decided quickly, especially when they are complete. The articles on partner visa processing times and partner visa processing delays and the FAQ on what a decision ready partner visa application is explain why timing cannot be predicted with confidence. A partner visa sponsor 5 years calculation that depends on slow processing is a hope, not a plan.
That is why the Department's decision date is only one part of the strategy. The other part is the waiver. A sponsor who lodges before the five years end should put the compelling circumstances case in the application from the start. If the decision comes early, the waiver submission is already on file. The article on partner visa compelling and compassionate circumstances and the article on partner visa compelling reasons and waiver evidence explain how compelling circumstances are presented in partner cases.
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What happens if the five years end during Tribunal review?
If the five years end while an Administrative Review Tribunal review is pending, the Tribunal can take that into account, because it decides the case on the law and facts as they stand at the time of its own decision.
This is one of the most important features of the partner visa sponsor 5 years calculation. A refusal made a few months before the five years end is not necessarily the end of the matter. If a valid review application is lodged in time, the end date of the calculation effectively moves to the date of the Tribunal's decision.
Several Tribunal decisions recorded in the firm's research show this pattern. Each was remitted, meaning sent back, to the Department:
- Rogers (Migration) [2020] AATA 4743, a Subclass 309 matter: five years had not lapsed since the earlier visa application; five years elapsed during review; genuine and continuing relationship.
- Ba (Migration) [2021] AATA 1251, a Subclass 820 matter: the five-year limitation expired.
- Da Silva (Migration) [2021] AATA 4909, a Subclass 309 matter: the application was made less than five years after the previous sponsorship; the limitation period had now passed; members of the family unit.
- Dang (Migration) [2024] AATA 137, a Subclass 820 matter: the application was made within five years of the previous sponsorship; five years had now passed; decided without a hearing.
- Pham (Migration) [2021] AATA 4906, a Subclass 309 matter: the application was made less than five years after the sponsor's permanent visa was granted; the limitation period had now passed; decided without a hearing.
- Kairpal (Migration) [2019] AATA 1914, a Subclass 309 matter: previous sponsorship of a partner; the five-year limitation had passed.
A further decision shows the other side of the same rule. In Promthong (Migration) [2024] AATA 2472, a Subclass 820 matter, the recorded issue was a prior sponsorship approved within five years of the time of the primary decision. The recorded issue turned on the time of the primary decision, which is the reference point for the Department's own partner visa sponsor 5 years calculation.
Two of these decisions were recorded as decided without a hearing. Whether a hearing is needed depends on each case. The other parts of the case, such as whether the relationship is genuine and continuing, still have to be satisfied. The article on the ART review process for partner visas and the FAQ on what happens if the Tribunal sends a case back explain what remittal means in practice. The FAQ on how to challenge a refusal involving sponsorship limitations and the FAQ on whether a lawyer can help with a partner visa sponsorship refusal answer common questions at this stage. The FAQ on giving the Tribunal new evidence and the article on partner visa ART evidence explain how the updated dates and any waiver evidence are put before the Tribunal.
The review deadline cannot be missed
The Tribunal can only help if the review is lodged in time. The application for review must be made within 28 days after the day the applicant is notified of the refusal, or 7 days if the applicant is in immigration detention. That time cannot be extended. For a Subclass 820 refusal and a Subclass 309 refusal, the visa applicant applies. For a Subclass 300 refusal, the sponsor applies. The FAQ on how to work out the deadline to apply for review, the article on the partner visa appeal deadline and the article on who can lodge a partner visa appeal explain these rules. The article on what to do when a partner visa is refused and the FAQ on what happens if a partner's sponsorship is refused set out the first steps after a refusal.
The Tribunal fee for a migration review is $3,727 for fees paid on or after 1 July 2026. A 50% reduction is available for financial hardship, and 50% is refunded if the decision is set aside or remitted. The FAQ on Tribunal review cost and fee reduction explains the fee. An onshore Subclass 820 applicant holding a Bridging visa A generally keeps it while a valid review is pending, as the article on a bridging visa after a partner visa refusal explains. The FAQ on how long a Tribunal review of a partner visa refusal takes explains why the Tribunal's decision date cannot be predicted either. The FAQ on whether to seek review or lodge a new partner visa application and the article comparing partner visa appeal and reapplication explain why review is often better than a fresh application when the only problem was the dates.
Before the refusal: the section 57 letter
Before refusing an application that can be reviewed, the Department must comply with section 57 of the Migration Act 1958. It must give the applicant particulars of relevant adverse information that would be the reason, or part of the reason, for refusal, explain why it is relevant, and invite comment. In a sponsorship limitation case, this letter is often where the partner visa sponsor 5 years calculation is first raised by the Department. The response should check the Department's dates against the records and put the compelling circumstances case. The article on the section 57 natural justice letter and the FAQ on how to respond to a section 57 letter explain the process.
Common partner visa sponsor 5 years calculation mistakes
The most common partner visa sponsor 5 years calculation mistakes come from using the wrong start date, the wrong end date, or a date taken from memory rather than from the records.
- Counting from the grant date. The start date is the earlier application date. Counting from the grant adds months or years.
- Counting from separation or divorce. The end of the earlier relationship does not start the period.
- Counting from citizenship. Citizenship has no effect on the partner visa sponsor 5 years calculation.
- Counting from the permanent stage grant. A later Subclass 801 or Subclass 100 grant does not create a new start date.
- Ending at lodgement. The period ends at the decision on the current sponsorship, not when the new application or sponsorship is lodged.
- Ignoring the second limb. A sponsor who was sponsored and has also sponsored needs two calculations, and the later end date controls.
- Relying on memory. People often remember the date a visa arrived, not the date the application was made. Those can be a year or more apart.
- Cutting it fine. A plan that depends on a decision landing a few days after the fifth anniversary carries real risk.
- Assuming refusal ends everything. If the five years end during review, the Tribunal can take that into account.
The article on partner visa application mistakes and the article on a partner visa sponsor risk assessment before lodgement discuss how errors like these are caught before lodgement.
How do you find the date the earlier application was made?
The earlier application date for a partner visa sponsor 5 years calculation should be taken from documents, such as the ImmiAccount application record and acknowledgement, or from the Department's own file obtained by a freedom of information request.
Several sources can help:
- ImmiAccount. For an online application, the account that lodged it shows the application and its lodgement details. The article on downloading a partner visa application copy from ImmiAccount and the article on partner visa lodgement confirmation explain what these records show. The FAQ on whether an ImmiAccount acknowledgement means the application is valid is also useful.
- Acknowledgement letters. The Department usually sends an acknowledgement of a valid application. Old emails and letters are often the quickest source.
- Grant notices. A grant notice confirms that the visa was granted, which matters for whether the sponsorship counts, but the grant date is not the start date.
- A freedom of information request. Where the sponsor no longer has access to the old ImmiAccount, or the former partner controlled it, the Department's file can be requested. The article on a partner visa FOI request explains how.
- The former representative. If a lawyer or registered migration agent lodged the earlier application, their file may hold the lodgement record.
Where the earlier application was the former partner's, the sponsor may not have the records. Under limb (b), the relevant application belongs to the former partner, but the sponsor's own sponsorship file, the sponsor's emails and the Department's records may still identify the date. The partner visa sponsor 5 years calculation should never be based on a guess. If the dates in the records and the dates the Department uses are different, the difference should be raised at the first opportunity. The Department checks its own sponsorship and nomination records, so its dates will be the starting point for its own partner visa sponsor 5 years calculation.
Does the partner visa sponsor 5 years calculation change for each visa type?
No. The partner visa sponsor 5 years calculation uses the same start and end dates whether the new application is for a Subclass 820, Subclass 309 or Subclass 300 visa, because the sponsorship is a time of decision criterion for each of them.
What changes is the practical position. For an onshore Subclass 820 partner visa, the applicant is usually in Australia and may be under pressure to lodge before a current visa expires. For an offshore Subclass 309 application, the applicant is outside Australia and the couple may have more freedom to choose the lodgement date. For a Subclass 300 application, the couple must also plan the marriage, and the sponsor, not the applicant, is the person who applies for review if the visa is refused. The FAQ on the difference between the Subclass 820 and Subclass 801 visas and the FAQ on which partner visa to apply for explain the pathways. In each case the same partner visa sponsor 5 years calculation is done against the same two dates.
Should the sponsor lodge now or wait until the five years end?
Whether to lodge now or wait depends on how far the sponsor is from the end of the five years, the applicant's visa position, the strength of any compelling circumstances, and the risk of an early decision.
When waiting may make sense
Where the applicant is outside Australia, has no visa pressure, and the five years end soon, waiting until the partner visa sponsor 5 years calculation is clearly satisfied removes the limitation completely. The application can then be prepared carefully, with the sponsorship approved on ordinary grounds. The article on partner visa offshore lodgement and the article on an offshore partner visa explain the Subclass 309 process. Waiting also has costs. Couples remain apart. Government charges can change, as the article on partner visa fee increases explains.
When lodging now may be necessary
Where the applicant is in Australia and their current visa is about to expire, waiting may not be possible. An applicant who lets their visa expire may face Schedule 3 criteria, and some visa conditions prevent an onshore application altogether. The article on lodging a partner visa application before visa expiry, the article on Schedule 3 criteria and the FAQ on Condition 8503 and partner visas explain those risks. The firm's page on urgent partner visa lodgement explains how the firm handles time-critical lodgements.
Lodging now with a waiver submission
A sponsor who lodges before the five years end should treat the waiver as the main argument, not a fallback. The application should include evidence of compelling circumstances affecting the sponsor, such as a child of the relationship, the death of a previous partner, children who depend on the sponsor after a previous spouse left, or a longstanding new relationship. The submission should also set out the partner visa sponsor 5 years calculation itself, with the earlier application date proved, so the decision maker can see exactly when the limitation ends. The articles on compelling reasons and length of relationship, compelling reasons and Australian citizen children and Form 888 witness statements explain the kinds of evidence involved.
A sponsor should not ask to withdraw and re-lodge simply to manage the dates without advice. Withdrawal has consequences for the application and for any refund, as the FAQs on withdrawing and reapplying for a partner visa and refunds after withdrawal explain.
How My Migration Lawyers helps with the partner visa sponsor 5 years calculation
My Migration Lawyers helps sponsors get the partner visa sponsor 5 years calculation right from the records, and the firm deals with complex sponsorship limitation cases, acts in many matters of exactly this type, and is capable of handling them at every stage.
The firm starts by identifying every relevant earlier application, under both limbs, and proving each application date from ImmiAccount records, acknowledgements or the Department's file. It then sets those dates against the likely decision window and the lifetime limit, so the sponsor knows whether the limitation applies today, whether it is likely to fall away before a decision, and what happens if it does not. That analysis decides whether to lodge now or wait, and what the application must contain.
Where the five years have not ended, My Migration Lawyers prepares the compelling circumstances submission alongside the sponsorship, so the case is on file before any early decision. Where a section 57 letter has arrived, the firm checks the Department's dates and responds. Where a refusal has already been made and the review deadline is still open, the firm lodges and runs the Tribunal review, including the argument that the five years have ended by the time of the Tribunal's decision. The firm's partner visa lawyers page, its partner visa refusals page and its page on urgent ART visa refusal applications explain more. The firm's partner visa questions hub answers related questions, and the article on what to expect from a partner visa lawyer consultation explains the first meeting. The firm's principal is Weiwei Zhang.
If you are a sponsor and you need a reliable partner visa sponsor 5 years calculation before you lodge, or a refusal has turned on the dates, Book a Consultation with My Migration Lawyers, or call 1300 040 300.
Frequently Asked Questions
How is the partner visa sponsor 5 years calculation worked out?
The partner visa sponsor 5 years calculation runs from the date the earlier partner or fiancé visa application was made to the date the Department approves or refuses the current sponsorship. For a sponsor who sponsored someone before, the start date is the former partner's application date. For a sponsor who was sponsored, it is the sponsor's own application date. If at least five years separate the start date and the decision date, the limitation in regulation 1.20J does not prevent approval.
Does the 5 year period start from the date the earlier visa was granted?
No. The period starts from the date the earlier visa application was made, not the date the visa was granted. Department policy says the five years are calculated from the date the first visa application was made. Because partner visas often take a long time to decide, the grant date is usually much later than the application date. Counting from the grant date makes a sponsor wait longer than the law requires.
Does the 5 year period end when we lodge the new application?
No. The period ends on the date the current sponsorship is approved or refused, which happens when the visa decision is made. Sponsorship approval is a time of decision criterion, so the test is applied on the day of decision. A sponsor who is less than five years from the earlier application at lodgement can still satisfy the test if the decision is made after the five years end.
Does the 5 year period start from the date we separated or divorced?
No. The date of separation or divorce plays no part in the calculation. The period starts from the date the earlier visa application was made, whatever happened to the relationship afterwards. Many sponsors count from the separation and wait years longer than necessary. The end of the earlier relationship can still matter in other ways, for example as part of a compelling circumstances argument, but it does not change the dates used for the five year test.
Does becoming an Australian citizen restart the 5 year count?
No. Citizenship does not restart, shorten or end the five year period. A sponsor who was sponsored as a partner counts from the date of their own partner or fiancé visa application, even if they have since become a citizen. A sponsor who sponsored a partner counts from that partner's application date. The date of the citizenship ceremony has no role in the calculation.
What date do I use if my partner visa had two stages?
Use the date the combined application was made. A Subclass 820 and Subclass 801 application is made together, and so is a Subclass 309 and Subclass 100 application. Department policy counts a two-stage sponsorship once, because there is no separate sponsorship approval for the permanent stage. The later grant of the permanent Subclass 801 or Subclass 100 visa does not create a new start date for the five year period.
What if I have sponsored more than one person or was also sponsored?
Do a separate calculation for each relevant earlier application, then use the latest end date. A sponsor who was sponsored and has also sponsored someone is caught by both limbs of regulation 1.20J, and both must be satisfied. The most recent earlier application usually decides the outcome because its five years end last. The lifetime limit of two approved sponsorships must also be checked, and passing the five year test does not overcome that limit.
What happens if the five years pass while the application is being processed?
The limitation no longer prevents approval. The Department applies the five year test on the day it decides the sponsorship. If the five years have ended by then, the sponsorship can be approved without a waiver, provided the other requirements are met. Department policy gives an example in which a new application was lodged four years and nine months after the first one and approved after processing, because five years had passed by the decision date.
What happens if the five years pass during Tribunal review?
The Administrative Review Tribunal can take that into account. The Tribunal decides on the law and facts at the time of its own decision, so a five year period that ends after the Department's refusal but before the Tribunal's decision can be satisfied on review. Several Tribunal decisions, including Rogers, Ba, Da Silva, Dang, Pham and Kairpal, were remitted to the Department where the limitation period had passed. The review must be lodged in time.
How do I find out when the earlier visa application was made?
Check the ImmiAccount that lodged the earlier application, the Department's acknowledgement letter or email, and any file held by the representative who lodged it. If those records are not available, request the Department's file through a freedom of information request. A grant notice confirms that the visa was granted but does not replace the lodgement record. The application date should always come from a document, not from memory.
Can I lodge a new partner visa before the five years are up?
Yes. A sponsor can lodge before the five years end, because the test is applied at the time of decision. The risk is that the Department decides the application before the five years end. For that reason, an application lodged early should include a compelling circumstances submission under regulation 1.20J(2), with evidence, so that the waiver is already on file if the decision comes sooner than expected.
Is it better to wait until the five years have passed before lodging?
It depends on the couple's circumstances. Waiting removes the limitation entirely and may suit an offshore applicant with no visa pressure when the five years end soon. Lodging now may be necessary for an onshore applicant whose current visa is about to expire, because letting it expire can create Schedule 3 problems. The decision should take into account the dates, the applicant's visa position and the strength of any compelling circumstances.
Does the calculation work the same for Subclass 820, Subclass 309 and Subclass 300 applications?
Yes. The start and end dates are the same for each of these visas, because sponsorship approval is a time of decision criterion for all three. What differs is the practical position: onshore Subclass 820 applicants may face visa expiry pressure, offshore Subclass 309 couples may have more control over timing, and for a Subclass 300 refusal it is the sponsor who applies for Tribunal review.
What are the most common mistakes in the 5 year calculation?
The most common mistakes are counting from the grant date instead of the application date, counting from separation, divorce or citizenship, treating the new lodgement date as the end date, forgetting the second limb where the sponsor was also sponsored, and relying on a remembered date rather than the records. Another mistake is planning for a decision to fall a few days after the fifth anniversary, which leaves no margin if the decision comes early.
What if the Department uses a different date from mine?
Raise the difference at the first opportunity and support it with documents. The Department checks its own sponsorship and nomination records, so its dates will be the starting point for its assessment. If a section 57 letter relies on a date the sponsor believes is wrong, the response should explain the correct date and attach the ImmiAccount record, acknowledgement or file material that proves it. A clear chronology helps the decision maker reach the right answer.
How long do I have to apply for review if the visa is refused on the dates?
The application for review must be made within 28 days after the day the applicant is notified of the decision, or 7 days if the applicant is in immigration detention. The time cannot be extended. For Subclass 820 and Subclass 309 refusals the visa applicant applies, and for a Subclass 300 refusal the sponsor applies. The Tribunal fee is $3,727 for fees paid on or after 1 July 2026, with a 50% reduction for financial hardship.
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.
