Partner Visa Sponsor Holding a Resident Return Visa

A partner visa sponsor resident return visa holder is still an Australian permanent resident, and can sponsor a spouse or de facto partner for a partner visa. The Resident Return visa is a permanent visa with a travel facility. It does not reduce the holder's status. However, every partner visa sponsor resident return visa holder must also be usually resident in Australia, and that is where problems start for sponsors who have spent years overseas.

This guide is written for the partner visa sponsor resident return visa holder: the sponsor who already holds a current Resident Return visa, either a Subclass 155 or a Subclass 157, and wants to sponsor a partner. It explains what the Resident Return visa means for sponsorship, how the Department may read the sponsor's residence history, how to choose between the onshore Subclass 820 partner visa and the offshore Subclass 309 partner visa, what happens if the sponsor travels, and what happens if the sponsor's own visa is cancelled. For the full picture of the partner visa programme, read our complete guide to partner visas in Australia. For advice on your own situation, our partner visa lawyers can review the sponsor's position before anything is lodged.

Can a partner visa sponsor resident return visa holder sponsor a partner?

Yes. A partner visa sponsor resident return visa holder can sponsor a partner, because a Resident Return visa is a permanent visa and its holder is a permanent resident. The partner visa criteria allow sponsorship by a spouse or de facto partner who is 18 or over and who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Our page on who can sponsor a partner visa sets out those three groups.

For the offshore Subclass 309 visa, clause 309.213 requires the applicant to be sponsored by their spouse or de facto partner who has turned 18. Clause 309.211 requires that partner to be an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The onshore Subclass 820 visa contains parallel criteria in clause 820.211. Nothing in those criteria excludes a person whose permanent visa happens to be a Resident Return visa.

What matters is not the subclass number printed on the sponsor's grant notice. What matters is whether the sponsor meets the legal definition of an Australian permanent resident at the relevant time. That definition has two parts, and the second part is the one most people overlook.

What a Resident Return visa actually is

A Resident Return visa is a permanent visa that gives a permanent resident, or a former permanent resident, a travel facility to leave and re-enter Australia as a permanent resident. Most people first receive a travel facility with their original permanent visa, for example a partner, skilled or family visa. That travel facility usually lasts five years from grant. When it ends, the permanent visa itself continues while the person is in Australia, but the person cannot re-enter Australia as a permanent resident on that visa. The Resident Return visa is how the travel facility is renewed.

There are two subclasses:

• Subclass 155 (Five Year Resident Return). The legislation names it as a five-year visa. It is generally granted with a travel facility of up to five years to a person who meets the residence requirement. A shorter travel facility may be granted where the person qualifies on another basis.
• Subclass 157 (Three Month Resident Return). The legislation names it as a three-month visa. It gives a short travel facility to a person who does not meet the residence requirement but has a compelling and substantial reason to travel.

The Department's published guidance describes the residence requirement as having spent a period totalling two years in Australia in the last five years. A person who does not meet that requirement may still qualify by showing substantial business, cultural, employment or personal ties of benefit to Australia. Departmental guidance also refers to compelling reasons for a continuous absence of five years or more.

A Resident Return visa does not make the holder an Australian citizen. A partner visa sponsor resident return visa holder sponsors as a permanent resident, not as a citizen. That distinction matters for the residence question discussed below. If the sponsor's travel facility has already expired, the issues are different, and our guide to partner visa sponsorship limitations and the firm's sponsorship limitations service page are a useful starting point for other sponsor barriers.

Is a partner visa sponsor resident return visa holder a permanent resident?

Yes, but only if they are usually resident in Australia. Regulation 1.03 of the Migration Regulations 1994 defines an "Australian permanent resident", for most purposes, as a non-citizen who, being usually resident in Australia, is the holder of a permanent visa. A different, wider meaning applies only to a person applying for a Resident Return visa itself.

This is the point that matters most for a partner visa sponsor resident return visa holder. The Resident Return visa proves the first part of the definition: the sponsor holds a permanent visa. It does not prove the second part: that the sponsor is usually resident in Australia. A sponsor can hold a valid Resident Return visa and still fall outside the definition if their life is, in reality, based overseas.

Many people assume that any permanent visa holder can sponsor wherever they live. That is wrong. An Australian citizen who lives overseas may still be able to sponsor a partner, as our page on whether an Australian living overseas can sponsor a partner visa explains. A permanent resident does not have the same freedom, because the definition of permanent resident is tied to usual residence. A temporary visa holder cannot sponsor at all, and a New Zealand citizen must be an eligible New Zealand citizen to sponsor.

What "usually resident in Australia" means for a partner visa sponsor's Resident Return visa

Usual residence is a question of fact about where the sponsor actually lives and intends to live. The Department's sponsorship form information describes usual residence by reference to the person's physical residence, meaning where they ordinarily eat, sleep and have a home, and the person's intention to make that place their home. It also states that a temporary absence from Australia would not necessarily prevent a person from being usually resident.

For a partner visa sponsor's Resident Return visa, this means two things. First, ordinary travel does not take a sponsor outside the definition. A sponsor who lives and works in Australia and travels to visit their partner or family is still usually resident. Second, a long absence can raise a real question. A sponsor who has lived and worked overseas for several years, holds a Resident Return visa to preserve their status, and visits Australia only occasionally may struggle to show that Australia is their usual residence.

The factors a case officer is likely to look at include:

• where the sponsor has physically lived over recent years, shown by their movement records;
• whether the sponsor has a home in Australia, owned or rented;
• where the sponsor works and pays tax;
• where the sponsor's bank accounts, assets and day-to-day finances are based;
• where the sponsor's family, friends and community ties are; and
• what the sponsor and the applicant plan to do, including where they intend to live together.

No single factor decides the question. A sponsor who has been overseas to care for a sick parent, to complete a fixed-term work assignment, or to live with the applicant for a period before migrating may still be usually resident in Australia if the evidence shows that the absence was temporary and the connection to Australia was maintained. A sponsor who has relocated overseas with no settled plan to return is in a much weaker position. Our article on partner visa extended overseas absence deals with long absences from the applicant's side, and many of the same evidence principles apply to the sponsor.

What the Resident Return visa grant says about the sponsor

The Resident Return visa grant is evidence that the Department was satisfied of the sponsor's eligibility for that visa at that time. For a Subclass 155 visa granted on the residence requirement, it suggests the sponsor had spent at least two years in Australia in the five years before the Resident Return visa application. That is helpful. It shows a recent and real presence in Australia.

The grant can also point the other way. If the Subclass 155 visa was granted on the basis of substantial ties of benefit to Australia, rather than on the residence requirement, it tells the case officer that the sponsor did not have two years of physical residence in the preceding five years at that time. A Subclass 157 visa tells the case officer that the sponsor had a short-term reason to travel and did not meet the residence requirement. Neither result prevents sponsorship. Each one is a signal that the case officer may want to look closely at whether the partner visa sponsor resident return visa holder is now usually resident in Australia.

A case officer reads the grant together with the sponsor's movement records, the sponsorship form and the evidence in the partner application. If those sources tell a consistent story about where the sponsor lives, the Resident Return visa is not an issue. If they conflict, for example because the sponsorship form gives an Australian address but the movement records show the sponsor has spent most of the last three years overseas, the case officer may raise the inconsistency in a section 56 request or a notice of intention to refuse.

The applicant and sponsor do not need to find the old Resident Return visa grant notice themselves. My Migration Lawyers checks the sponsor's current visa status and conditions through VEVO and Department records once it is instructed, using the passport details on file. Our page on how to prove a sponsor's status explains the equivalent issue for citizen sponsors.

Onshore Subclass 820 or offshore Subclass 309 for a partner visa sponsor resident return visa holder

The choice between the onshore and offshore partner visa depends on where the applicant is, not on the sponsor's visa. The applicant must be in Australia to apply for the Subclass 820 visa and outside Australia to apply for the Subclass 309 visa. A partner visa sponsor resident return visa holder can sponsor either. Our comparison of onshore and offshore partner visas sets out the general differences.

The sponsor's travel pattern still affects the strategy. Three situations come up most often.

The sponsor lives in Australia and the applicant is overseas

This is the most straightforward case. The applicant applies for the Subclass 309 visa from outside Australia, and the sponsor lodges the sponsorship from Australia. The partner visa sponsor's Resident Return visa simply confirms that the sponsor can return after visiting the applicant. Our guide to the offshore partner visa and the page on help with an offshore Subclass 309 and Subclass 100 application explain the process. Mistakes at lodgement are common, and our article on offshore lodgement mistakes is worth reading first.

The sponsor and applicant are both in Australia

If the applicant holds a substantive visa in Australia, the couple can usually consider the Subclass 820 visa. The onshore partner visa allows the applicant to stay in Australia on a bridging visa while the application is processed. If the applicant does not hold a substantive visa, the Schedule 3 criteria may apply and the firm's Schedule 3 waivers page is relevant. A partner visa sponsor resident return visa holder living in Australia with the applicant is the clearest example of usual residence.

The sponsor has been living overseas with the applicant

This is the difficult case for a partner visa sponsor resident return visa holder. Many couples meet and live together overseas while the sponsor holds a Resident Return visa to keep their status. They then decide to move to Australia. The applicant is outside Australia, so the Subclass 309 visa is the natural pathway. The question is whether the sponsor is still usually resident in Australia at the time of application.

For this partner visa sponsor resident return visa holder, timing and preparation matter. In some cases the safer course is for the sponsor to re-establish life in Australia first, by returning, finding a home and taking up work, before the sponsorship is lodged. In other cases the absence of the partner visa sponsor resident return visa holder was clearly temporary and the existing evidence is strong enough. The right answer depends on the facts. Our pages on whether a sponsor can live overseas while a Subclass 820 visa is processed and on living together overseas towards the 12 months cover related points.

Processing times also differ between the two pathways. Our articles on partner visa processing times and whether onshore is faster than offshore explain what affects the wait.

Timing: when the partner visa sponsor's residence is tested

The sponsor's status is tested at the time of application, and the sponsorship must be approved and remain in force at the time of decision. Clause 309.213 and clause 820.211 deal with sponsorship at the time of application. Subclause 309.222(1) and subclause 820.221(4) require the sponsorship to be approved and to remain in force at the time of decision.

For a partner visa sponsor resident return visa holder, this has practical consequences. The sponsor should be usually resident in Australia when the application is lodged. The sponsor should then avoid changes during processing that could undermine the sponsorship, such as cancelling their Australian lease and moving overseas indefinitely, or allowing their permanent visa to be put at risk.

Approval of the sponsor is not a separate decision for partner visas. Department policy states that the approval of a sponsor is a component of the decision to grant or refuse the visa itself, and that where a sponsorship is not approved, the visa must be refused. For a partner visa sponsor resident return visa holder, a sponsor problem is therefore always a visa problem. Our page on what happens if a partner's sponsorship is refused explains the consequences, and our page on whether a lawyer can help with a sponsorship refusal explains the options.

Travel during processing for a partner visa sponsor resident return visa holder

A partner visa sponsor resident return visa holder can travel during processing, but should keep the trips temporary and keep the travel facility current. Visiting the applicant overseas is normal and is often good evidence of commitment. Our article on partner visa travel evidence explains how to use visits as evidence.

Three rules keep a partner visa sponsor resident return visa holder safe:

• Check the travel facility before every trip. The partner visa sponsor's Resident Return visa has an expiry date for travel. If the sponsor is outside Australia when it ends, they cannot re-enter as a permanent resident on that visa. That can damage the sponsorship and leave the sponsor stranded.
• Keep the Australian base. Keep the home, the job or business, the bank accounts and the tax residence in Australia. These are the facts that show usual residence.
• Explain long trips. If a long stay overseas is unavoidable, record the reason, the expected return date and the steps taken to maintain life in Australia.

The applicant's travel is a separate question. An applicant for the Subclass 820 visa who holds a Bridging visa A generally needs a Bridging visa B before leaving Australia. Our general guide to the Bridging visa B and our page on leaving Australia without the right bridging visa explain why. An applicant for the Subclass 309 visa can generally visit Australia on a visitor visa, as explained in our pages on visiting Australia during partner visa processing and visiting Australia while a Subclass 309 is processed, but must be outside Australia when the Subclass 309 is granted. Our broader article on partner visa overseas travel and our pages on travel during processing and travelling separately during processing cover the couple's travel together.

Evidence a partner visa sponsor resident return visa holder provides

A partner visa sponsor resident return visa holder provides the same core sponsor evidence as any other sponsor, plus evidence of usual residence where the travel history raises a question. Our page on what documents a sponsor needs to provide lists the standard items.

The core sponsor material is:

• Identity. The sponsor's current passport.
• Police certificates. The Department asks sponsors to provide police certificates when they submit the sponsorship or as soon as possible after. Our guides to the AFP police check and overseas police certificates explain what is needed. A sponsor who has lived overseas may need certificates from those countries too.
• The relationship evidence. The sponsor contributes to the relationship evidence across the financial, household, social and commitment aspects of the relationship. Our guide to partner visa relationship evidence explains how these fit together.

The sponsor does not need to dig out the old Resident Return visa grant notice or earlier visa grant letters. My Migration Lawyers obtains the sponsor's visa status and history from VEVO and Department records.

The residence evidence, where it is needed, focuses on the sponsor's life in Australia now. It can include:

• a current lease or property title for the sponsor's home in Australia;
• recent payslips, an employment letter or business records showing work in Australia;
• recent Australian tax returns or notices of assessment;
• Australian bank statements showing day-to-day spending in Australia; and
• a short written explanation of any long absence, with its reason and end date.

The aim is not volume. The aim is a clear, consistent account showing that Australia is where the partner visa sponsor resident return visa holder lives. Our partner visa document checklist and article on organising evidence after lodgement help keep the file in order.

Sponsorship limitations that still apply to the partner visa sponsor's Resident Return visa

The ordinary sponsorship limitations apply to a partner visa sponsor resident return visa holder exactly as they apply to any other sponsor. Being a partner visa sponsor resident return visa holder does not create any exemption.

Regulation 1.20J limits a sponsor to two approved partner or fiancé sponsorships, and prevents a further sponsorship until five years after the first earlier visa application. It also prevents a person who was themselves sponsored as a partner from sponsoring until five years after their own visa application. That last rule catches many Resident Return visa holders, because a large number first became permanent residents through a partner visa. The limitation can be waived where there are compelling circumstances affecting the sponsor. Our pages on whether you can sponsor if you were sponsored on a partner visa, whether a lawyer can help if the sponsor has sponsored before and whether you can sponsor more than one partner explain these limits.

Regulations 1.20KC and 1.20KD deal with sponsors who have been convicted of a relevant offence or have a significant criminal record. The sponsorship may still be approved if it is reasonable to do so. The sponsor must also consent to the disclosure of convictions for relevant offences. Our pages on a sponsor with a criminal record and on lawyer help where a sponsor has a criminal record deal with this in more detail. A criminal record matters twice for a Resident Return visa holder, because it can affect both the sponsorship and the sponsor's own permanent visa.

What happens if the partner visa sponsor's Resident Return visa is cancelled?

If the partner visa sponsor's Resident Return visa is cancelled, the sponsor is no longer the holder of a permanent visa, is no longer an Australian permanent resident, and the sponsorship can no longer be approved. Because a sponsorship that is not approved requires the visa to be refused, a cancellation of the sponsor's visa puts the partner application at immediate risk.

A permanent visa, including a Resident Return visa, can be cancelled on several grounds. The most common for a permanent resident is a character concern, often after a criminal conviction, under the character provisions of the Migration Act 1958. Our articles on section 501 and partner visas, partner visa character requirements and our visa cancellations service page explain how these cancellations work. Our page on whether a permanent partner visa can be cancelled addresses the same question from the applicant's side.

For a partner visa sponsor resident return visa holder, the key is to treat a threat to the sponsor's visa as a threat to the whole family's migration plan. If the sponsor receives a notice of intention to consider cancellation, the response must be prepared carefully and on time. If the sponsor's visa has already been cancelled, the review deadline for that cancellation is the first priority. Our guides on responding to a cancellation notice and cancellation review explain the steps, and the urgent help page is the place to start when a deadline is close.

What Tribunal decisions show about a cancelled sponsor visa

Published Tribunal decisions show that a partner visa refusal based on the cancellation of the sponsor's permanent visa can be remitted where the cancellation is later set aside or the visa is restored. The following decisions from the Tribunal's published reasons are relevant to a partner visa sponsor resident return visa holder.

• Lei (Migration) [2024] AATA 1166 concerned a Subclass 820 application where the sponsor's Resident Return visa was cancelled after a criminal conviction and the cancellation was set aside on review. The Tribunal also considered whether the relationship was genuine and continuing, in a family with one child and a second pregnancy. The decision was remitted.
• Vispo (Migration) [2023] AATA 694 concerned a Subclass 820 application where the sponsor's permanent visa was cancelled, and a differently constituted Tribunal set aside the cancellation of the sponsor's visa. The decision was remitted.
• Faba-an (Migration) [2020] AATA 4250 concerned a Subclass 820 applicant who was the spouse of an Australian permanent resident intending to live permanently in Australia, where the sponsor's visa was cancelled but restored. The decision was remitted.
• Zhao (Migration) [2021] AATA 5494 concerned a Subclass 820 applicant who, at the time of application, was the spouse of an Australian permanent resident, where the parties were validly married and the married relationship was genuine. The decision was remitted.

The lesson is practical. The sponsor's own cancellation case and the partner visa case are linked. Winning the sponsor's review can restore the foundation of the partner application. Losing track of the sponsor's review can end it. Each decision turns on its own facts, and no outcome can be promised in any case.

The Administrative Review Tribunal replaced the Administrative Appeals Tribunal on 14 October 2024. Decisions made before that date carry the AATA citation.

Review if the partner visa is refused

If a partner visa is refused because of a sponsor issue, the refusal can generally be reviewed by the Administrative Review Tribunal. An application for review must be made within 28 days after notification of the decision, or 7 working days for a person in immigration detention, and the time limit cannot be extended. The migration review application fee is AUD 3,727 at the time of writing, with a 50 per cent reduction available for severe financial hardship.

For an onshore Subclass 820 refusal, the applicant applies for review. For an offshore Subclass 309 refusal, the sponsor has traditionally been the person who applies. Our page on who applies for review of an offshore refusal and our article on who can lodge a partner visa appeal explain this. For a partner visa sponsor resident return visa holder, that can mean the sponsor is the review applicant as well as the person whose residence is in question.

Our guides on how to appeal a partner visa refusal, the ART review process, the review deadline and what to do after a refusal set out the process. The firm's partner visa refusals and judicial review pages explain the work at each level.

Common mistakes by a partner visa sponsor resident return visa holder

The most common mistakes come from assuming that a permanent visa is all a sponsor needs. They include:

• Treating the Resident Return visa as proof of residence. It proves the sponsor holds a permanent visa. It does not prove usual residence in Australia now.
• Giving an Australian address that does not match the travel record. An inconsistent address can raise credibility concerns that spread to the whole application, and our article on false information refusals shows how serious that can become.
• Letting the travel facility expire overseas. A sponsor stuck outside Australia without a valid travel facility cannot easily re-establish usual residence.
• Ignoring an earlier partner sponsorship. A sponsor who first became a permanent resident through a partner visa may be caught by the five-year rule in regulation 1.20J.
• Ignoring a criminal matter. A charge or conviction can affect both the sponsorship and the sponsor's own permanent visa.
• Choosing the pathway without checking the applicant's location and visa. The Subclass 820 and Subclass 309 visas have different location rules, and lodging the wrong one can make the application invalid. Our pages on an onshore application lodged from overseas and an offshore application lodged in Australia explain the risk.

Most of these mistakes are avoidable with a careful check before lodgement. Our partner visa refusal reasons article covers the wider picture.

The partner visa sponsor's Resident Return visa and the permanent stage

The sponsor's status matters again at the permanent stage. The Subclass 801 and Subclass 100 visas define the sponsoring partner as the Australian citizen, Australian permanent resident or eligible New Zealand citizen who was specified in the first-stage application. Our articles on the two-stage partner visa process, the permanent partner visa and the difference between the Subclass 820 and Subclass 801 explain how the two stages connect.

A partner visa sponsor resident return visa holder should therefore keep the travel facility current and keep the Australian base through the whole process, not only until the first visa is granted. Some sponsors consider applying for Australian citizenship when they become eligible. Citizenship is a separate application with its own requirements, and our article on the partner visa citizenship pathway explains how it fits for the applicant.

How My Migration Lawyers helps a partner visa sponsor resident return visa holder

My Migration Lawyers acts for couples where the sponsor holds a Resident Return visa, including sponsors who have spent long periods overseas, sponsors who first became permanent residents through a partner visa, and sponsors whose own permanent visa has been threatened or cancelled. The firm deals with complex partner visa matters and acts in many matters of this exact type. It is capable of handling the sponsor issue and the partner application together, from first assessment to grant, and at review if a refusal has already been made.

The work for a partner visa sponsor resident return visa holder usually includes:

• Checking the sponsor's status. Confirming the sponsor's current visa, travel facility and conditions through VEVO and Department records, so the sponsor does not need to find old grant notices.
• Assessing usual residence. Reviewing the sponsor's movement history, home, work, tax and family ties against the definition of Australian permanent resident, and advising whether the sponsorship should be lodged now or after the sponsor re-establishes life in Australia.
• Choosing the pathway. Advising whether the Subclass 820 or Subclass 309 visa fits, based on the applicant's location and visa history.
• Checking sponsorship limitations. Reviewing earlier sponsorships, the sponsor's own partner visa history and any criminal matters under regulations 1.20J, 1.20KC and 1.20KD.
• Presenting the evidence. Preparing the sponsorship and the application so the sponsor's residence evidence and the couple's own account of the relationship are presented clearly and consistently.
• Managing travel. Advising the sponsor and applicant on travel during processing, including the sponsor's travel facility and the applicant's bridging visa.
• Protecting the sponsor's visa. Acting quickly if the sponsor faces cancellation, and coordinating the sponsor's case with the partner application.
• Review. Applying to the Administrative Review Tribunal within time if the partner visa is refused, and presenting the case at hearing.

The firm is led by Weiwei Zhang, Principal Lawyer. You can read more about My Migration Lawyers and how the firm works as immigration lawyers in Australia. Couples who are not sure whether they need a lawyer may find our pages on hiring a lawyer to avoid a partner visa refusal, help with a Subclass 820 and Subclass 801 application and an Australian partner visa lawyer for couples living overseas useful. The firm acts for couples across Australia, including through its partner visa lawyers in Sydney, Melbourne, Brisbane and Perth. More answers are collected in our Partner Visa Questions centre.

A partner visa sponsor resident return visa holder is best advised before the sponsorship is lodged, while the residence evidence can still be organised and the timing can still be chosen. Book a consultation with My Migration Lawyers online, or call 1300 040 300.