Partner Visa Australia: The Complete Guide to Subclass 820, 801, 309, 100 and 300

What is a partner visa in Australia?

A partner visa lets the spouse or de facto partner of an Australian live in Australia permanently, in two stages. The sponsoring partner must be an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The applicant must be the sponsor's spouse or de facto partner, as those terms are defined in section 5F and section 5CB of the Migration Act 1958. Same-sex and opposite-sex couples are treated the same way.

The phrase "partner visa" covers three pairs of visas in the Migration Regulations 1994. Subclass 820 and Subclass 801 are the onshore pair, lodged in Australia. Subclass 309 and Subclass 100 are the offshore pair, lodged outside Australia. Subclass 300 is the Prospective Marriage visa, lodged offshore by a person who intends to marry their Australian partner after arriving. Every one of these visas is decided by the Department of Home Affairs against criteria set out in Schedule 2 to the Regulations.

The two-stage structure is the feature people misunderstand most. A person who lodges an onshore partner visa application is applying for two visas at once: the temporary Subclass 820 and the permanent Subclass 801. One application, one application charge, two visas. The temporary visa is granted first. The permanent visa is assessed later, in most cases once two years have passed since the application was made, and only if the relationship is still genuine and continuing. The offshore pair works the same way, with Subclass 309 as the temporary visa and Subclass 100 as the permanent visa.

A partner visa is not granted on the strength of the relationship alone. It is granted on evidence. The Department must be satisfied that the relationship is genuine and continuing, that the couple have a mutual commitment to a shared life to the exclusion of all others, and that they live together or are not living separately and apart on a permanent basis. Those words come from the Act. The Regulations then tell the decision maker how to test them, through the four aspects of the relationship set out in regulation 1.15A(3) for married couples and regulation 1.09A(3) for de facto couples. Those four aspects are explained in detail later in this guide, because they decide most applications.

The applicant, the sponsor and the relationship must each pass their own tests. The applicant must meet health and character requirements. The sponsor must be eligible to sponsor and must not be caught by the sponsorship limitations in regulation 1.20J. The relationship must be one the law recognises. A weakness in any one of the three can bring down an otherwise strong application.

Which partner visa applies to you?

The right partner visa depends on where the applicant is when the application is lodged and whether the couple are already married or in a de facto relationship. An applicant in Australia lodges the onshore combined application for Subclass 820 and Subclass 801. An applicant outside Australia who is already married or in a de facto relationship lodges the offshore combined application for Subclass 309 and Subclass 100. An applicant outside Australia who is engaged but not yet married and not in a de facto relationship applies for the Subclass 300 Prospective Marriage visa.

VisaWhere the applicant must be at lodgementRelationship at lodgementWhat it leads toSubclass 820 and Subclass 801In AustraliaMarried or de factoSubclass 820 temporary, then Subclass 801 permanentSubclass 309 and Subclass 100Outside AustraliaMarried or de factoSubclass 309 temporary, then Subclass 100 permanentSubclass 300Outside AustraliaEngaged, intending to marryEntry to marry, then an onshore Subclass 820 and Subclass 801 application

The onshore pathway suits couples who are already living together in Australia while the applicant holds another visa, such as a student, visitor or temporary work visa. The applicant must be in Australia when the application is lodged and when the Subclass 820 visa is granted. Once a valid onshore application is lodged, the applicant is granted a Bridging visa A that keeps them lawful once their current visa ends. That bridging visa is explained below.

The offshore pathway suits couples where the applicant is overseas, or where the applicant cannot lodge onshore because a condition on their current visa or an earlier refusal stands in the way. The applicant must be outside Australia when the Subclass 309 application is lodged. The general rule in clause 309.412 is that the applicant must also be outside Australia when the Subclass 309 visa is granted, although a concession introduced in February 2021 allows grant onshore for applicants who were in Australia during the prescribed concession period. Once the Subclass 309 visa is granted the holder can travel to Australia and wait onshore for the Subclass 100 decision.

The Subclass 300 pathway suits couples who intend to marry but cannot yet meet the definition of spouse or de facto partner. The holder enters Australia, marries within the visa period, and then lodges the onshore Subclass 820 and Subclass 801 application while the Subclass 300 visa is still in effect. It is a three-step route to permanent residence rather than two, and it is the only partner visa that requires a wedding to take place.

Partners of New Zealand citizens who are not eligible New Zealand citizens sit outside the partner visa program altogether. The Subclass 461 New Zealand Citizen Family Relationship visa is a temporary visa for that situation and is not a pathway to permanent residence on its own.

What is the difference between Subclass 820 and Subclass 801?

Subclass 820 is the temporary partner visa and Subclass 801 is the permanent partner visa, and both are applied for in the one onshore application. The Subclass 820 visa is granted first. It lets the holder live, work and study in Australia while the permanent stage is assessed. The Subclass 801 visa is granted later, in most cases once at least two years have passed since the application was made and the Department is satisfied the relationship is still genuine and continuing. Subclass 801 is permanent residence.

The two visas have different criteria and are assessed at different times. Subclass 820 is assessed against the criteria in Part 820 of Schedule 2. Subclass 801 is assessed against the criteria in Part 801. An applicant does not lodge a second application or pay a second application charge for the Subclass 801 stage. The Department contacts the applicant when the permanent stage falls due and asks for updated evidence, or the applicant can provide it once the two years have passed.

The Subclass 820 visa remains in effect until the Subclass 801 application is decided. If the Subclass 801 visa is refused, notification of that refusal causes the Subclass 820 visa to cease, and the applicant's lawful status then depends on lodging a valid review application within the time limit. If the Subclass 801 visa is granted, the Subclass 820 visa ends and the holder becomes a permanent resident. The same relationship exists between Subclass 309 and Subclass 100 for offshore applicants: Subclass 309 is the temporary visa and Subclass 100 is permanent.

Who can sponsor a partner visa?

A partner visa sponsor must be an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, and must usually be at least 18 years old. The sponsor is the applicant's spouse or de facto partner. For the Subclass 300 visa, the sponsor is the prospective spouse and both parties must have turned 18 when the application is made under clauses 300.212A and 300.213. The sponsor must be approved by the Department, and sponsorship is assessed at the time of decision, not just at lodgement.

Sponsorship is not automatic. Three sets of rules can stop an otherwise eligible sponsor.

The first is the sponsorship limitation in regulation 1.20J. A person may have no more than two approved partner or prospective marriage sponsorships in their lifetime. A person who has sponsored a partner before cannot have another sponsorship approved until at least five years have passed since the first visa application was made. A person who was themselves sponsored as a partner cannot sponsor a new partner until five years have passed since their own visa application was made. The five years are counted from the date of the earlier application to the date the current sponsorship is decided. Regulation 1.20J(2) allows the limitation to be waived where there are compelling circumstances affecting the sponsor. Under Departmental policy those circumstances include a dependent child of the new relationship, the death of the previous partner, or the previous partner abandoning the sponsor with children who need care. A genuine new relationship is not, on its own, a compelling circumstance. The detail is set out on the partner visa sponsorship limitations page.

The second is the police check requirement in regulations 1.20KC and 1.20KD. Every partner visa sponsor must provide an Australian national police check, and a foreign police check for any country where they have spent 12 months or more in the last ten years since turning 16. If the sponsor has been convicted of a relevant offence and has a significant criminal record, the Department may refuse the sponsorship. Relevant offences are, broadly, offences involving violence, harassment, breach of protection orders, weapons, people trafficking, and offences against children. A sponsor with convictions for relevant offences must consent to those convictions being disclosed to the applicant, and if the sponsor refuses consent, the visa cannot be granted. A sponsor who does not provide the requested police checks can also have the sponsorship refused under regulation 1.20KC(6).

The third is regulation 1.20KB, which applies where the application includes a child under 18. A sponsor who has been convicted of, or charged with, a registrable offence against a child can have the sponsorship refused on that ground alone.

Sponsorship also carries obligations. The sponsor undertakes to support the applicant financially and with accommodation, and to help them settle. If the sponsor withdraws sponsorship before the visa is decided, the application fails unless one of the exceptions discussed later in this guide applies. A person who sponsored a Subclass 300 applicant must meet the sponsorship requirements again when the couple lodge the onshore Subclass 820 and Subclass 801 application after the wedding.

Who can apply for a partner visa?

A person can apply for a partner visa if they are the spouse or the de facto partner of an eligible sponsor, are at least 18 years old, and can meet the health, character and other public interest criteria in Schedule 4 to the Regulations. The relationship test is the heart of the application and it differs slightly for married and de facto couples.

Married applicants

A married applicant must be in a married relationship as defined in section 5F of the Act. There are four parts to that definition. The couple must be married to each other under a marriage that is valid for the purposes of the Act. They must have a mutual commitment to a shared life as a married couple to the exclusion of all others. The relationship must be genuine and continuing. And they must live together, or not live separately and apart on a permanent basis.

Validity of the marriage is tested against the Marriage Act 1961. A marriage solemnised overseas is generally recognised in Australia if it was valid under the law of the country where it took place, subject to exceptions. A marriage is not recognised if either party was already married to someone else, if the parties are within a prohibited degree of relationship, if either party did not give real consent, or if a party was under marriageable age. Australian law requires both parties to be at least 18, with a narrow court-ordered exception for a party aged 16 or 17. Polygamous marriages are not recognised. Where a marriage is not recognised, the Department will consider whether the couple meet the de facto definition instead.

A married couple do not need to have been married for any minimum period. There is no 12-month rule for spouses. What matters is that the marriage is genuine and continuing at the time of application and at the time of decision.

De facto applicants

A de facto applicant must be in a de facto relationship as defined in section 5CB of the Act. The couple must not be married to each other, must have a mutual commitment to a shared life to the exclusion of all others, must be in a relationship that is genuine and continuing, must live together or not live separately and apart on a permanent basis, and must not be related by family.

De facto applicants face one extra hurdle that married applicants do not. Regulation 2.03A requires the de facto relationship to have existed for at least 12 months immediately before the date of application. This is the requirement people call the 12-month rule. It is assessed at the time of decision, but the 12 months must have run before the application was lodged. A relationship that reaches 12 months after lodgement does not meet it.

There are four ways around the 12-month rule. The first is registration of the relationship under a prescribed State or Territory law. Registered relationships in New South Wales, Victoria, Queensland, South Australia, Tasmania and the Australian Capital Territory are prescribed for this purpose. Western Australia and the Northern Territory have no prescribed register. Registration can take place after the application is lodged, as long as the relationship is registered before the decision is made. A receipt showing that a registration application has been lodged is not enough. The second is compelling and compassionate circumstances under regulation 2.03A(3)(b). Policy gives two examples: a dependent child of the relationship, and a couple living in a country where de facto relationships are illegal. Pregnancy alone is not accepted as compelling and compassionate. The genuineness of the relationship is never, by itself, a compelling and compassionate circumstance. The third and fourth exceptions concern couples where the sponsor holds or has applied for a permanent humanitarian visa.

Living apart does not automatically defeat a de facto claim. Section 5CB allows a couple to be in a de facto relationship while not living together, as long as they are not living separately and apart on a permanent basis. The Department will want an explanation for the separation and evidence that it is temporary. A couple who have never lived together will find this very difficult to establish.

Children and other family members

Dependent children of the applicant can be included in the application as secondary applicants. They must meet health and character requirements of their own. Where a child under 18 is included, the sponsor's police history is examined under regulation 1.20KB, and where the child is not the sponsor's child, evidence of custody or the consent of the other parent will be required under public interest criteria 4017 and 4018.

Same-sex and LGBTIQ+ couples apply under exactly the same provisions and are assessed against exactly the same four aspects of the relationship. Since 9 December 2017 same-sex marriage has been lawful in Australia and a same-sex marriage solemnised overseas is recognised on the same basis as any other marriage.

How long do you have to be in a relationship for a partner visa?

No minimum relationship period applies to a married couple applying for a partner visa, while a de facto couple must have been in a de facto relationship for at least 12 months immediately before the application is made, unless the relationship is registered or compelling and compassionate circumstances exist. That is the whole of the rule on relationship length. Everything else is about the quality of the evidence rather than the passage of time.

The 12-month requirement in regulation 2.03A is often misunderstood in two ways. The first is to treat it as 12 months of living together. It is 12 months of a de facto relationship, and a couple can be in a de facto relationship while not living together, provided they are not living separately and apart on a permanent basis and can show mutual commitment to a shared life. Time spent living together is strong evidence, but it is not the legal test. The second is to treat it as 12 months at the time of decision. The 12 months must have run before the date of application. A couple who lodge at ten months and reach 12 months while the application is being processed do not meet the requirement, unless they register the relationship or marry before the decision is made.

The 12 months must be immediately before the application. A couple who were together for two years, separated, and reunited eight months before lodging do not meet it, because the current de facto relationship has existed for only eight months. Earlier periods of the relationship are relevant to genuineness and commitment, but they do not count towards regulation 2.03A.

Length of relationship matters again at the permanent stage. A couple in a long-term partner relationship at the time of application, meaning at least three years, or at least two years with a dependent child of both partners, are not required to wait two years for the permanent visa. For couples who have been together for many years before applying, this concession removes an entire stage of the process, and the application should be prepared with that in mind from the start.

Short relationships are not barred. A couple married after a brief courtship can apply immediately. What a short relationship changes is the evidentiary burden. The decision maker will want to understand how the relationship developed so quickly, and the couple's own accounts and the Form 888 statements need to answer that question before it is asked.

How does the Department decide whether a relationship is genuine?

The Department decides whether a partner relationship is genuine by considering all the circumstances of the relationship, including the four matters prescribed in regulation 1.15A(3) for married couples and regulation 1.09A(3) for de facto couples. Those four matters are 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. For a partner visa the decision maker must consider all four. If a partner visa is refused on relationship grounds, the refusal decision must address all four, unless the refusal is because the marriage itself is not valid.

The four aspects are not a checklist where each box must be ticked. The Regulations require the decision maker to have regard to all the circumstances of the relationship and to decide what weight each matter deserves. A couple can be weak on one aspect and still succeed if the overall picture is convincing. Equally, a thick folder of joint bank statements will not rescue an application if the couple cannot describe each other's lives. Decision makers read the evidence as a whole and look for consistency between what the couple say and what the documents show.

Financial aspects of the relationship

The financial aspect asks whether the couple have combined their finances the way a committed couple ordinarily would. The Regulations point to joint ownership of real estate or other major assets, joint liabilities, the extent of pooling of financial resources, whether one partner owes a legal obligation to the other, and the basis on which day-to-day household expenses are shared. Evidence commonly includes joint bank accounts that are actually used, joint leases or mortgages, utility accounts in both names, insurance policies naming each other, and evidence of one partner supporting the other financially. A joint account opened the week before lodgement and never used says very little.

The nature of the household

The household aspect asks whether the couple live as one household. The Regulations point to joint responsibility for the care and support of children, the couple's living arrangements, and how they share housework and household responsibilities. Evidence includes the lease or title showing both names, correspondence addressed to each partner at the same address over time, evidence of a shared routine, and, where there are children, evidence of shared parenting. Couples who have lived apart for work or family reasons need to explain the separation and show that the household is still shared in substance.

Social aspects of the relationship

The social aspect asks whether the couple present to the world as a couple. The Regulations point to whether the couple represent themselves to others as partners, the opinion of friends and acquaintances about the nature of the relationship, and whether the couple do things together socially. Evidence includes Form 888 statements from people who know the couple, photographs across the life of the relationship, invitations addressed to both, evidence of joint travel, and social media where it exists. This is the aspect where supporting statements carry the most weight, and where vague statements do the most damage.

The nature of the commitment

The commitment aspect asks whether the couple are committed to a shared life for the long term. The Regulations point to the duration of the relationship, the length of time the couple have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term. Evidence includes each partner's own written account of the relationship, wills and superannuation nominations naming each other, evidence of plans made together, and evidence of contact during any period apart. The couple's own statements matter here more than anywhere else, and inconsistencies between the two statements are the most common reason a decision maker starts to doubt an application.

What evidence do you need for a partner visa?

A partner visa needs evidence of identity, evidence of the relationship across all four aspects, supporting statements from people who know the couple, and health and character evidence for the applicant and police checks for the sponsor. There is no fixed list of documents that guarantees a grant. The Department's own checklist is a starting point, not a ceiling, and the strongest applications organise the evidence around the four aspects so that the decision maker can see each one answered.

Identity and status documents come first. The applicant needs a current passport, birth certificate and evidence of any name change. Married couples need the marriage certificate and, where either party was previously married, the divorce order or death certificate that ended the earlier marriage. De facto couples need either evidence that the relationship has existed for 12 months or evidence of registration. The sponsor needs evidence of Australian citizenship, permanent residence or eligible New Zealand citizen status.

Relationship evidence should be dated and should span the life of the relationship, not just the months before lodgement. Decision makers look for a timeline they can follow: how the couple met, when the relationship became exclusive, when they began living together, and how their lives have joined since. Each partner writes their own account of that history in their own words. The two accounts should agree on the facts, but they should not read as though one person wrote both.

Form 888 statements are the supporting statements the Department asks for from people who know the couple. The Department asks for at least two, and expects the people making them to be Australian citizens or Australian permanent residents who know the relationship personally. A useful Form 888 statement says how the person knows the couple, how often they see them, what they have observed, and why they believe the relationship is genuine. A statement that repeats the same three sentences as every other statement is worth very little. Statements from people who have only met the couple online carry almost no weight.

Health and character evidence applies to the applicant and any secondary applicant. Partner visa applicants must meet public interest criterion 4007, the health requirement, which includes a waiver where the applicant would otherwise fail on cost or prejudice to access to health care. They must also satisfy public interest criterion 4001, the character requirement, which is tested against section 501 of the Act, and will be asked for police certificates from Australia and from any country where they have lived for 12 months or more in the last ten years. Public interest criterion 4020 applies to every partner visa. It allows refusal where a bogus document or false or misleading information has been given in connection with the application or a visa held in the previous 12 months, and it can carry a bar on further grants. Public interest criterion 4020 refusals are common in partner visa matters where an earlier application, sometimes lodged by someone else, contained a false statement the applicant never saw.

The sponsor provides the police checks described above and completes the sponsorship application. Where the sponsor has previously sponsored a partner or been sponsored, the earlier application dates must be disclosed so that regulation 1.20J can be assessed.

Four evidence mistakes appear again and again in refused applications. The first is lodging with thin evidence and planning to add more later; the Department does not always request further documents before deciding. The second is inconsistency between the applicant's statement, the sponsor's statement and the Form 888 statements about basic facts such as when the couple met or moved in together. The third is treating the four aspects as separate boxes and leaving one empty, most often the financial aspect for couples who keep separate accounts. The fourth is failing to explain anything that looks unusual, such as a period living apart, a large age gap, a short courtship or a previous partner visa sponsorship. Unexplained matters are read against the applicant.

How does the two-stage process work?

The two-stage process means the applicant is first granted a temporary partner visa and is then assessed for the permanent partner visa, in most cases once at least two years have passed since the application was made. For the onshore pathway the temporary visa is Subclass 820 and the permanent visa is Subclass 801. For the offshore pathway the temporary visa is Subclass 309 and the permanent visa is Subclass 100. Both stages are covered by the single application lodged at the start.

The two-year period runs from the date the original application was made, not from the date the temporary visa was granted. Clause 801.221(2)(d) provides that at least two years must have passed since the application was made before the Subclass 801 visa can be granted. Because partner visa processing often takes a long time, many applicants find that the two years have already passed by the time the Subclass 820 visa is granted. In that situation the Department can move directly to assessing the permanent stage.

At the second stage the Department asks for updated evidence that the relationship is still genuine and continuing. The applicant must still hold the Subclass 820 visa and must still be sponsored by the same sponsor. The evidence requested is lighter than at the first stage, but it is still assessed against the same four aspects. Couples who have separated, or whose evidence shows they stopped living together, will have the permanent visa refused unless one of the exceptions below applies. Notification of a Subclass 801 refusal causes the Subclass 820 visa to cease, and the applicant's right to remain in Australia then depends on seeking review.

Long-term relationships

Clause 801.221(6A) removes the two-year wait for applicants who were in a long-term partner relationship with their sponsor when the application was made. Regulation 1.03 defines a long-term partner relationship as one that has existed for at least three years, or at least two years where there is a dependent child of the applicant and the sponsor, other than a step-child. Where that definition is met, the Department assesses the Subclass 801 criteria immediately after granting the Subclass 820 visa and, if they are met, grants the permanent visa straight away. The same concession applies to Subclass 100 applicants. Couples who meet the definition should say so plainly in the application and evidence the length of the relationship carefully, because the Department will not apply the concession unless the evidence supports it.

Exceptions when the relationship has ended

The permanent visa can still be granted within the two-year period, and after the relationship has ended, in three situations set out in clauses 801.221(5) and 801.221(6). The first is where the sponsor has died and the applicant would otherwise have continued in the relationship and has developed close business, cultural or personal ties in Australia. The second is where the applicant, or a dependent child of the applicant or the sponsor, has suffered family violence committed by the sponsor. The third is where the relationship has ended and the applicant has custody or access rights in relation to a child for whom the sponsor has custody, access or maintenance obligations. These exceptions are explained in more detail later in this guide.

Subclass 100 review rights

Subclass 100 applicants should know one point that catches people out. If a Subclass 309 holder is outside Australia when the Subclass 100 visa is refused, there is no right to merits review under the Act. Review under section 338(7A) is available only where the applicant was in Australia when the decision was made and is in Australia when the review application is lodged. Subclass 309 holders awaiting the permanent decision should take advice before travelling for long periods.

Can you apply for a partner visa onshore without a substantive visa?

Yes, a person in Australia who does not hold a substantive visa can apply for the Subclass 820 partner visa, but Schedule 3 criteria 3001, 3003 and 3004 then apply unless the Minister is satisfied that there are compelling reasons for not applying them. A substantive visa is any visa other than a bridging visa, a criminal justice visa or an enforcement visa. This means the rule applies to people who are unlawful and to people who hold only a bridging visa. Clause 820.211(2)(d)(ii) is the provision that imports Schedule 3, and the Schedule 3 waiver is the single most important issue in these applications.

Criterion 3001 requires the application to have been made within 28 days after the relevant day, which is broadly the day the applicant last held a substantive visa. An applicant who has been without a substantive visa for more than 28 days cannot meet criterion 3001 and must rely on the waiver. Criterion 3003 and criterion 3004 require, among other things, that the applicant stopped holding a substantive visa because of factors beyond their control, that there are compelling reasons for granting the visa, that the applicant substantially complied with the conditions of their last visa, and that they would have been entitled to the visa had they applied while lawful. In practice, almost every applicant who does not hold a substantive visa at lodgement needs the waiver.

The waiver turns on whether there are compelling reasons for not applying the Schedule 3 criteria. The Regulations do not define compelling reasons. Following the Full Federal Court decision in Waensila v Minister for Immigration and Border Protection \[2016\] FCAFC 32, the decision maker must consider all of the applicant's circumstances up to the time of decision, not only those that existed when the application was lodged. Circumstances that arise after lodgement, such as the birth of a child, can therefore count.

The Department's policy is strict about what does not count. A genuine relationship is not a compelling reason, because every partner visa application is founded on a genuine relationship. Hardship from separation if the applicant had to leave and apply offshore is not, on its own, a compelling reason. An applicant who has remained unlawful for years and made no attempt to become lawful will find the waiver hard to obtain. Policy expects compelling reasons to arise from circumstances beyond the applicant's control, such as serious illness or incapacity that prevented them becoming lawful, and gives weight to the interests of Australian citizen children of the relationship.

Two other barriers sit alongside Schedule 3. The first is condition 8503, the "No further stay" condition attached to many visitor and some other temporary visas. Section 46(1A) of the Act prevents a person whose last substantive visa carried condition 8503 from making a valid onshore application for most visas, including a partner visa, unless the condition is waived. The waiver under regulation 2.05(4) requires compelling and compassionate circumstances that developed after the visa was granted, that were beyond the person's control, and that resulted in a major change to their circumstances. A relationship that already existed when the visa was granted will not meet that test. Without a waiver the applicant must apply offshore for a Subclass 309 visa.

The second is the bar in section 48 of the Act, which applies to a person in Australia who has had a visa refused or cancelled since last entering and who does not hold a substantive visa. Section 48 prevents most further onshore applications, but the Regulations prescribe certain classes of visa that remain available, and the partner visa classes are among them. A person caught by section 48 can therefore still lodge a Subclass 820 application, but Schedule 3 will apply to it, and the compelling reasons waiver must be argued.

What happens while a partner visa is being processed?

An onshore partner visa applicant who holds a substantive visa when they lodge is granted a Bridging visa A, which comes into effect when their current visa ends and lets them stay lawfully in Australia until the partner visa is decided. The Bridging visa A granted to Subclass 820 applicants carries no conditions, because Subclass 820 and Subclass 801 applicants are in a class specified by legislative instrument under clause 010.611(1)(c). That means the applicant can work without restriction once the bridging visa is in effect. A Bridging visa A does not permit travel. An applicant who needs to leave Australia and return must first obtain a Bridging visa B, which is granted for a specified travel period and requires substantial reasons for travel.

An applicant who lodges without a substantive visa is in a different position. They will be granted or will need to apply for a Bridging visa E, and Schedule 3 applies to the partner application as explained above. Bridging visa E holders may have work restrictions and generally cannot travel and return.

Offshore applicants for Subclass 309 and Subclass 300 visas do not receive a bridging visa because they are outside Australia. They may visit Australia on a visitor visa while the application is processed, but a visitor visa is granted for a temporary stay and the applicant must be outside Australia when the Subclass 309 or Subclass 300 visa is granted, subject to the concession described earlier. Visitor visa applications by partner visa applicants are scrutinised closely for genuine temporary entrant purposes.

During processing the couple have ongoing obligations. Changes of circumstances must be notified to the Department, including a change of address, the birth of a child, a marriage where the couple applied as de facto partners, and any separation. Dependent children born or added after lodgement can be added to the application before it is decided. The Department may request further information, may interview the couple separately, and may make enquiries with third parties. Requests for information carry response periods that are strictly applied, and an application can be decided on the material held if a request is not answered in time.

Processing times for partner visas are published by the Department and change from month to month. They are not stated in this guide because they move, and any figure written here would be out of date within weeks. The Department's current published times are available on its Subclass 820 and Subclass 801 page and its Subclass 309 and Subclass 100 page. The visa application charge is also published there. What the couple can control is the completeness of the application at lodgement, because incomplete applications wait in the queue like every other application and are then delayed again by requests for information.

How does the Subclass 300 Prospective Marriage visa work?

The Subclass 300 Prospective Marriage visa lets a person enter Australia to marry their Australian citizen, permanent resident or eligible New Zealand citizen fiancé, and then apply onshore for the Subclass 820 and Subclass 801 partner visas. It is granted for a period of between 9 and 15 months from the date of grant under clause 300.511, and the marriage must take place within that period. The Department's requirements are set out on its Subclass 300 page. The visa is the right choice for couples who intend to marry but are not yet married and are not in a de facto relationship that meets the definition in section 5CB.

The applicant must be outside Australia when the application is lodged and when the visa is granted. Both the applicant and the prospective spouse must have turned 18 at the time of application. Under clause 300.214 the couple must have met in person since each of them turned 18 and must be known to each other personally. Contact by phone, video or the internet does not count as having met in person; the Full Federal Court confirmed in Minister for Immigration and Citizenship v Yucesan \[2008\] FCAFC 110 that the parties must have come into each other's physical presence.

Clause 300.215 requires the couple to genuinely intend to marry, for the marriage to be one that would be valid under Australian law, and for the marriage to be intended to take place within the visa period. The Department expects a signed and dated letter from an authorised marriage celebrant giving the date or date range and the venue, and in most cases confirming that a Notice of Intended Marriage has been lodged. Under clause 300.216 the couple must genuinely intend to live together as spouses. Clause 300.221A requires that there is no impediment to the marriage under Australian law at the time of decision, which most often means that any earlier marriage of either party has been validly dissolved.

Two conditions are mandatory on the Subclass 300 visa under clause 300.612. Condition 8515 prohibits the holder from marrying or entering a de facto relationship before their first entry to Australia. Condition 8519 requires the holder to enter into the marriage for which the visa was granted within the visa period. The holder must enter Australia before the first entry date specified on the visa. Once the holder has entered Australia they may leave again and marry overseas if they wish, but the marriage must still occur within the visa period and the onshore partner application should be lodged while the Subclass 300 visa is in effect.

Arranged marriages are recognised, provided both parties give real consent. The Department will examine a marriage arranged by relatives or brokers for evidence that the applicant and the prospective spouse each freely agreed to it. A marriage arranged when either party was under marriageable age, or entered without real consent, is not recognised and can raise forced marriage concerns.

The sponsorship rules described earlier, including regulation 1.20J and the police check requirements, apply to Subclass 300 sponsors in full. The Subclass 300 Prospective Marriage visa page explains the onshore step that follows the wedding.

What if the relationship ends before the visa is granted?

If a partner relationship ends before the visa is granted, the application will ordinarily be refused, because the relationship must be genuine and continuing at the time of decision, but the Regulations preserve the application in three situations: family violence committed by the sponsor, the death of the sponsor, and shared parental responsibility for a child. Which provision applies depends on the stage the application has reached and the visa subclass, so the position must be checked against the specific clause.

Family violence

Division 1.5 of the Regulations, regulations 1.21 to 1.27, allows a partner visa to be granted where the relationship has ended because the applicant, or a dependent child, suffered family violence committed by the sponsor. The provisions apply at the permanent stage for Subclass 801 and Subclass 100 applicants, and at the temporary stage for Subclass 820 applicants under clause 820.221(3). They also cover Subclass 300 holders who married their sponsor and then applied for the onshore partner visa. The family violence, or part of it, must have occurred while the relationship existed.

Relevant family violence is defined in regulation 1.21 as conduct, actual or threatened, towards the alleged victim, a member of their family unit, a member of the sponsor's family unit, or their property, that causes the alleged victim to reasonably fear for or be apprehensive about their wellbeing or safety. It is not limited to physical harm. Psychological abuse and financial abuse fall within the definition.

The Regulations recognise two kinds of evidence. Judicially determined evidence under regulations 1.23(2) to (7) means a court injunction under the Family Law Act 1975, a state or territory court order made against the sponsor, or a conviction or finding of guilt against the sponsor. Where judicially determined evidence is provided, the Department must accept that family violence occurred and cannot look behind it. Non-judicially determined evidence under regulations 1.23(8) and (9) and regulation 1.24 means a statutory declaration by the applicant setting out the violence, together with at least two documents from the types prescribed in the legislative instrument, such as reports from a medical practitioner, police, a child welfare authority, a family violence support service or a registered psychologist, with only one document of each type counted. Where the Department is not satisfied on non-judicial evidence, it must refer the matter to an independent expert, whose opinion binds the Department on whether the violence occurred.

Applicants who leave a violent relationship often fear that leaving means losing the visa. The law says otherwise, but the evidence must meet the prescribed form, and the timing of the claim matters. The family violence provisions page sets out the evidence in detail.

Death of the sponsor

Where the sponsor dies before the visa is decided, clause 820.221(2) at the temporary stage and clause 801.221(5) at the permanent stage allow the visa to be granted if the applicant would have continued in the relationship had the sponsor not died and has developed close business, cultural or personal ties in Australia. The applicant must provide the death certificate. The equivalent provisions apply to the offshore pair.

Children of the relationship

Where the relationship has ended and the applicant has custody or access rights in relation to a child for whom the sponsor has custody, access or maintenance obligations, clause 801.221(6)(c)(ii) allows the Subclass 801 visa to be granted without waiting two years. The purpose of the provision is to allow the parent and child relationship to continue and to remove the pressure on a parent to remain in a relationship for visa reasons. Parenting orders or a parenting plan assist, although they are not required where the child is the child of both parties.

Where none of these exceptions applies and the relationship has ended, the honest advice is that the partner visa cannot succeed. An applicant in that position should take advice quickly on what other visa options exist and on the consequences of remaining in Australia after the application is refused.

Why are partner visas refused and what can you do?

Partner visas are refused most often because the Department is not satisfied the relationship is genuine and continuing, because a de facto couple did not meet the 12-month requirement, because Schedule 3 applied and the waiver was not granted, because the sponsor was caught by a sponsorship limitation, or because the applicant failed a public interest criterion such as 4020, 4001 or 4007. A refusal notice must state the reasons and must state whether the decision can be reviewed. Most partner visa refusals can be reviewed on the merits by the Administrative Review Tribunal.

Relationship refusals are the largest category. They typically follow an interview where the couple gave inconsistent answers, evidence that was thin on one or more of the four aspects, a period of separation that was not explained, or information from a third party. Public interest criterion 4020 refusals follow the discovery of a false document or statement, sometimes in an earlier application. Schedule 3 refusals follow a finding that there were no compelling reasons to waive criteria 3001, 3003 and 3004.

For an onshore Subclass 820 or Subclass 801 refusal, the applicant applies to the Tribunal. For an offshore Subclass 309 or Subclass 300 refusal, the sponsor applies to the Tribunal, because the applicant is outside Australia. For a Subclass 100 refusal, review is available only if the applicant was in Australia when the decision was made and is in Australia when the review application is lodged. The time limit for applying to the Tribunal is short and strictly applied, it runs from the date the applicant is taken to have received the decision, and the Tribunal has no power to extend it. An application lodged one day late is invalid and the refusal stands.

Tribunal review is a full merits review. The Tribunal considers the application afresh, can take new evidence, and can hold a hearing at which the couple give evidence. It can affirm the refusal, or remit the application to the Department with a direction that the applicant meets the criterion on which the refusal turned, after which the Department finalises the remaining criteria. Review of a partner visa refusal is often the point at which evidence that should have been in the original application is finally assembled, and the Tribunal will look closely at why it was not provided earlier.

An applicant who lodged onshore and holds a bridging visa keeps that bridging visa while a valid review application is on foot. A refused applicant who does not seek review, or who seeks it late, will need to leave Australia or find another lawful basis to remain, and a refusal while onshore triggers the section 48 bar described earlier. The partner visa refusals page and the broader visa refusals page set out how review proceeds.

What can you do on a partner visa once it is granted?

A temporary partner visa holder can live, work and study in Australia without restriction while the permanent stage is assessed, and a permanent partner visa holder can remain in Australia indefinitely as a permanent resident. The rights differ between the two stages, and the difference matters for planning.

Holders of the Subclass 820 and Subclass 309 temporary visas can work for any employer, study, and travel in and out of Australia while the visa is in effect. The visa has no set end date. Under clause 820.511 and clause 309.511 it remains in effect until the permanent visa application is decided or withdrawn. Temporary partner visa holders are applicants for permanent residence, and that status is relevant to a range of entitlements administered by other agencies, which should be checked directly with the agency concerned.

Holders of the Subclass 801 and Subclass 100 permanent visas are Australian permanent residents. They can live in Australia indefinitely, work and study, enrol in Medicare, and sponsor eligible family members for visas of their own, subject to the sponsorship limitations described earlier. The travel facility on a permanent visa allows the holder to leave and re-enter Australia for five years from the date of grant. After that period, a permanent resident who is outside Australia needs a Resident Return visa to re-enter, although their permanent residence itself does not end. Permanent residents can apply for Australian citizenship once they meet the residence and other requirements of the Australian Citizenship Act 2007.

A permanent partner visa is not conditional on the relationship continuing after grant. Once the Subclass 801 or Subclass 100 visa is granted, a later separation does not by itself affect the visa. What can affect any visa is a finding that it was obtained on false information, which is a ground for cancellation under section 109 of the Act, or a character ground under section 501. Couples should therefore make sure that the evidence given at both stages is accurate, because the permanent visa rests on the whole record.

How My Migration Lawyers acts in partner visa matters

My Migration Lawyers acts in partner visa matters at every stage covered by this guide: onshore Subclass 820 and Subclass 801 applications, offshore Subclass 309 and Subclass 100 applications, Subclass 300 Prospective Marriage applications, second-stage permanent applications, and reviews of partner visa refusals before the Administrative Review Tribunal. The firm acts in many matters of exactly this kind, and a large share of its work is in the complex end of the partner visa program, where Schedule 3, condition 8503, the section 48 bar, sponsorship limitations under regulation 1.20J, family violence claims or a previous refusal are in issue.

The firm's approach is set out plainly so that a couple know what they are engaging. Weiwei Zhang, Principal Lawyer, advises on which visa applies and whether the couple meet the definition of spouse or de facto partner before anything is lodged. Where the 12-month requirement, Schedule 3 or a sponsorship limitation is in play, the firm advises on whether a waiver argument is open and what evidence it needs. The firm takes the couple's own account and the couple's own documents and presents them in the form the Regulations require, organised against the four aspects in regulation 1.15A(3) or regulation 1.09A(3), so that the decision maker can see each criterion answered.

Where a partner visa has been refused, the firm advises on review rights and time limits on the day the refusal is received, and prepares the review application and the evidence for the Tribunal hearing. Where a relationship has ended through family violence, the firm advises on the evidence Division 1.5 requires and manages the claim and any independent expert referral.

My Migration Lawyers is capable of handling partner visa matters of every level of complexity. Consultations are conducted by video Australia-wide, and every matter is charged on a fixed fee set out in a written costs agreement before work begins. Couples who want advice on their own position can request a consultation and a lawyer will reply by email. Further information about the firm's partner visa work is on the partner visa lawyers page, and Weiwei Zhang's professional background is on her author page.