Tourist Visa to Partner Visa in Australia: What to Check Before Applying

Can you apply for a partner visa in Australia while you are on a tourist visa?

Yes. A person who is in Australia on a visitor visa can lodge a Subclass 820 partner visa application onshore, provided the visitor visa does not carry condition 8503 and the applicant meets the requirements in Schedule 1 item 1214C of the Migration Regulations 1994. Thousands of couples take this path every year. It is lawful, it is common, and the Department of Home Affairs processes these applications as a matter of course.

That is the short answer, and it is the answer most websites stop at. It is also the answer that gets people into trouble, because the question that matters is not whether you can apply. It is whether you can be granted the visa, and what your position will be in the months between lodgement and decision.

Six things decide that. Each one is a separate legal test, each one is assessed independently, and a failure on any of them can end the application regardless of how genuine the relationship is. Those six checks are set out in this article, in the order a lawyer would work through them.

A note on terminology before going further. The onshore partner visa is a two stage visa. You apply once, on one combined application form, for a Subclass 820 visa and a Subclass 801 visa. The Subclass 820 is the temporary stage. The Subclass 801 is the permanent stage, assessed later. Throughout this article, "partner visa" lodged in Australia means the combined Subclass 820 and Subclass 801 application.

The offshore equivalent is the Subclass 309 partner visa, leading to the Subclass 100. It is lodged from outside Australia. Which of the two is right for a given couple is a decision that should be made before anything is lodged, not after, and the last section of this article explains why.

The one exclusion that applies before anything else

Paragraph 820.211(1)(a) of Schedule 2 provides that the applicant must not be the holder of a Subclass 771 (Transit) visa. A transit visa holder cannot satisfy the time of application criteria for a Subclass 820 visa at all. This is absolute. There is no waiver and no discretion.

Everyone else who is lawfully in Australia on a temporary visa, including a visitor visa, starts from the position that an onshore partner visa application is legally open to them. The rest of this article is about what narrows that position.

Check 1: does your visitor visa carry condition 8503?

Condition 8503 is the single most important thing to check, and it must be checked before anything else is done, because it determines whether an onshore application can be made at all.

The condition reads that the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia. It is set out in Schedule 8 to the Migration Regulations 1994 and is commonly called the "no further stay" condition. Its purpose, in the Department's own words, is to provide additional assurance that the holder will depart Australia before their visa ceases.

Together with subsection 46(1A) of the Migration Act 1958, condition 8503 prevents a valid application being made in Australia. It is not a matter of the application being weak or being refused. The application cannot be validly made, the application charge is not refunded as a matter of course, and no bridging visa flows from it.

Which visitor visas carry it

Condition 8503 is mandatory on a Subclass 600 visa in the following streams:

• the Sponsored Family stream
• the Approved Destination Status stream
• the Frequent Traveller stream
• the Tourist stream, where the sponsorship under clause 224 has been approved by the Minister

It is discretionary in the Business Visitor stream, and discretionary in the Tourist stream in every case other than the sponsored one above. Discretionary means an officer may impose it on the individual grant. A person who was granted a Tourist stream visitor visa without sponsorship is not automatically free of it.

This is why the condition must be read off the actual grant notice or checked through VEVO, and not assumed from the visa subclass. Two people on the same Subclass 600 visitor visa, granted in the same month, can be in completely different positions.

The trap almost every website misses

Condition 8503 does not stop operating when the visa it was attached to ceases.

Subsection 46(1A) bars a person in Australia who, since last entering Australia, holds or has held a visa carrying a "no further application" condition. The Department's procedural instruction states this directly: a person is barred even if the visa to which the condition is attached has ceased to be in effect.

The practical consequence is severe and is regularly misunderstood. Waiting for the visitor visa to expire does not clear condition 8503. Becoming unlawful does not clear it. Being granted a bridging visa does not clear it. The only two things that clear it are a waiver granted under subsection 41(2A) of the Migration Act 1958, or departing Australia and re-entering on a new visa that does not carry the condition.

A protection visa is carved out of the condition by its own wording and can be applied for without a waiver. That is a separate matter and is not a workaround for a partner visa. An application lodged for that reason rather than because a person genuinely fears return will be refused, will stay on the immigration record permanently, and will create further bars.

Can condition 8503 be waived so a partner visa can be lodged?

Yes, but the waiver is narrow, and a relationship with an Australian is not by itself a ground for it.

Subsection 41(2A) of the Migration Act 1958 allows a delegate to waive a "no further application" condition in circumstances prescribed by the Regulations. The main waiver ground is subregulation 2.05(4). Every element of it must be met. The elements are cumulative, which means failing one is fatal even where the others are strongly made out.

Under paragraph 2.05(4)(a), the applicant must show circumstances that:

• developed since the visa was granted
• were beyond the applicant's control
• resulted in a major change to the applicant's circumstances
• are both compelling and compassionate

Under paragraph 2.05(4)(b), a person previously refused a waiver cannot be granted one unless the new circumstances are substantially different from those already considered. Under paragraph 2.05(4)(c), the request must be made in writing.

What the Department accepts, and what it does not

Departmental policy gives a non-exhaustive list of scenarios capable of amounting to compelling and compassionate circumstances. They include travel restrictions preventing departure, being medically unfit to travel, the death or serious illness of a close family member, natural disaster in the home country, and war or severe civil unrest in the home country.

Now the part that matters most for this topic, and it needs to be said plainly because it is the single biggest misconception in this area.

Departmental policy states that where an applicant has married or commenced a de facto relationship with an Australian citizen or permanent resident, this would generally not be a matter over which the visa holder had no control.

Falling in love is not, in the Department's framework, a circumstance beyond your control. A genuine and continuing relationship with an Australian is the foundation of every partner visa application, which is precisely why it cannot also serve as the exceptional circumstance that justifies departing from a condition designed to ensure departure.

Pregnancy is treated the same way. Policy states that pregnancy in itself is not generally considered a circumstance over which the visa holder had no control. If the holder was already pregnant when the visa was granted, the "developed since grant" element is also unlikely to be met. An exception may arise where the holder or their partner experiences complications associated with pregnancy or childbirth that leave the holder unfit to travel, which is assessed as a medical matter, on medical evidence, not as a family matter.

Where a pre-existing condition is relied on, policy allows for the possibility that it has deteriorated or escalated to such an extent that the circumstances can be said to have developed since grant. That is a medical evidence question, and it is won or lost on the quality of the treating practitioner's material.

What this means in practice

For most couples in this position, the honest advice is that a waiver request built on the relationship alone will be refused, and that the realistic path is a Subclass 309 partner visa lodged from outside Australia. That advice is unwelcome, and it is still the correct advice. Lodging a waiver request that cannot succeed costs time that the couple does not have, and a refused waiver raises the bar for any later request under paragraph 2.05(4)(b).

There are narrower waiver provisions in the Regulations directed at particular cohorts, including certain skilled and provisional work visa applicants and certain safe haven enterprise visa holders. They do not assist a partner visa applicant.

Check 2: will you still hold a substantive visa on the day you lodge?

This is the check that decides whether Schedule 3 applies to your application, and Schedule 3 is where onshore partner visa applications most often fail.

A substantive visa is any visa other than a bridging visa, a criminal justice visa or an enforcement visa. A visitor visa is a substantive visa. A bridging visa is not.

If you lodge the Subclass 820 application while you still hold your visitor visa, Schedule 3 does not apply to you at all. The application is assessed on the relationship, the sponsorship, health, character and the other ordinary criteria. This is the clean position, and it is available to anyone who lodges before their visitor visa ceases.

If you lodge after your visitor visa has ceased, subparagraph 820.211(2)(d)(ii) requires you to satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

The difference between those two positions is enormous, and it is created by a single date. That is the whole point of this section.

What criteria 3001, 3003 and 3004 require

Criterion 3001 imposes a time limit. The application must be made within 28 days of the relevant day, which is generally the day the last substantive visa ceased. Criterion 3002 imposes a 12 month limit in the same terms but does not apply to the Subclass 820.

Criteria 3003 and 3004 apply to applicants who became unlawful and require, among other things, that the applicant's circumstances were beyond their control, that there are compelling reasons for granting the visa, and that the applicant substantially complied with the conditions of their last substantive visa.

Criterion 3005 limits an applicant to one opportunity only to be granted a substantive visa on the basis of Schedule 3. A person who has already relied on Schedule 3 once cannot rely on it again.

Criteria 3001 and 3003 and 3004 do not prevent a valid application being made. They prevent the visa being granted. The application is validly lodged, a bridging visa may follow, the charge is paid, and then the application fails at decision stage unless the waiver is exercised. That distinction matters because it means a person can spend two years on a bridging visa waiting for a refusal that was inevitable on day one.

The Schedule 3 waiver, and what the Department says about relationships

Subparagraph 820.211(2)(d)(ii) allows the Minister to be satisfied that there are compelling reasons for not applying the Schedule 3 criteria. The Regulations do not define what those reasons are, so the assessment is made case by case.

In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the Full Court of the Federal Court held that in considering the waiver the decision maker must take into account all of the applicant's circumstances known up to the time of decision, and not only those existing at the time of application. Circumstances that arise after lodgement can therefore found the waiver, and submissions about them must be considered.

Departmental policy then sets out, in terms, what will not usually be enough. As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and the sponsoring partner, and the hardship suffered from separation if the applicant were to leave and apply outside Australia, are not compelling reasons to avoid applying the Schedule 3 criteria. Policy explains why: a genuine relationship forms the basis of all partner visa applications.

Policy also states that the waiver provisions are not intended to give an advantage to persons who fail to comply with their visa conditions, who deliberately manipulate their circumstances to give rise to compelling reasons, or who can simply leave Australia and apply for a partner visa outside Australia.

What policy does contemplate is circumstances beyond the applicant's control that caused the applicant to become unlawful, or that prevented the applicant from becoming lawful by some means other than the partner visa application itself. Severe illness or incapacity is the example given.

The practical lesson is the one this article keeps returning to. Lodge while the visitor visa is still in effect, and none of this arises. Australian migration law rewards the applicant who acts before the visa ceases and offers very little to the applicant who acts afterwards. More detail on the waiver is set out on the My Migration Lawyers page on Schedule 3 waivers.

Check 3: has any visa been refused or cancelled since you last entered Australia?

Section 48 of the Migration Act 1958 limits which visas a person may apply for if they are in Australia, do not hold a substantive visa, and have had a visa refused or cancelled since they last entered. The classes that remain available are prescribed by regulation 2.12.

Here is the answer people most need and rarely get straight. Partner visas are on that list. Partner (Temporary) (Class UK), which contains the Subclass 820, and Partner (Residence) (Class BS), which contains the Subclass 801, are both prescribed classes. A person affected by the section 48 bar can still apply for an onshore partner visa.

That is genuinely good news, and it is why a visitor visa refusal or cancellation is not the end of an onshore partner visa plan. But two qualifications attach to it, and both are commonly missed.

Section 48 applicants face extra validity requirements

An ordinary onshore partner visa application can be lodged without the sponsorship form being submitted at the same time. An application by a person to whom section 48 applies cannot.

Paragraph 1124B(3)(e) of Schedule 1 requires a section 48 affected applicant to provide, at the same time and place as making the application:

• the approved sponsorship form, being form 40SP, completed and signed by the Australian citizen, Australian permanent resident or eligible New Zealand citizen who claims to be the applicant's spouse or de facto partner
• two statutory declarations, each made by an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is not the partner, each declaring that the applicant and the partner are in a married relationship or de facto relationship, and each declared no more than six weeks before the day the application is made

These are validity requirements, not evidence requirements. If they are not met, there is no valid application. The Department's stated reason is that applicants subject to a section 48 bar are required to meet a higher threshold than other applicants, to protect the integrity of the partner visa programme.

The six week window is the detail that catches people. A statutory declaration signed months earlier and filed away does not work. The declarations must be freshly made, by people who qualify, immediately before lodgement.

Leaving and returning does not reset the bar

Subsection 48(3) provides that a person who leaves and re-enters Australia while holding a bridging visa is taken to have been continuously in Australia despite that travel. A trip overseas on a Bridging visa B does not clear a section 48 bar.

There is one genuine distinction. Subsection 48(3) does not prevent a person from making a visa application while they are outside Australia. An application lodged from overseas while the person is away on a Bridging visa B is a valid application, assuming the Schedule 1 requirements for that visa are met. Where and when the application is made therefore changes the answer completely.

Check 4: has the relationship existed long enough?

This check applies only to de facto couples. Married couples are not subject to it.

Regulation 2.03A imposes additional criteria on applicants assessed as being in a de facto relationship. Both parties must be at least 18 years of age. For the visa classes listed in paragraph 2.03A(3)(a), which include the onshore partner visa, the de facto relationship must have existed for at least 12 months immediately before the date the application was made.

The 12 months must be immediately before the application. A couple who lived together for a year, separated, and later reunited cannot add the two periods together to reach 12 months. Policy addresses this specifically.

The four ways around the 12 month requirement

There are four, and they are not all equally useful.

Marriage. If the relationship status changes and the couple are married, and the relationship meets the definition of spouse in section 5F of the Migration Act 1958, the length of relationship requirement in regulation 2.03A falls away. This is the most direct answer for couples who intend to marry in any event.

Registration of the relationship. Under subregulation 2.03A(5), the 12 month minimum does not apply if the de facto relationship is registered under a prescribed State or Territory law. The prescribed laws include the Relationships Register Act 2010 (NSW), the Relationships Act 2008 (Vic), the Civil Partnerships Act 2011 (Qld), the Relationships Register Act 2016 (SA), the Relationships Act 2003 (Tas), and the Domestic Relationships Act 1994 (ACT) and the Births, Deaths and Marriages Registration Act 1997 (ACT).

There is an important timing point here that is worth more than almost anything else in this section. Unlike subregulation 2.03A(3), subregulation 2.03A(5) does not specify when the relationship must be registered. Departmental policy accepts that an applicant who registers the relationship after the application is made but before it is decided has met subregulation 2.03A(5). A couple who lodge short of 12 months are not necessarily lost. A receipt for a lodged registration application is not sufficient. The relationship must actually be registered.

Registration is not available in every State and Territory, and residence requirements apply in some. That has to be checked before it is relied on.

Compelling and compassionate circumstances. Paragraph 2.03A(3)(b) allows the requirement to be set aside where the applicant establishes compelling and compassionate circumstances for the grant of the visa. Policy describes this as a high threshold and gives two examples: the applicant has a dependent child of the relationship, or de facto relationships are illegal in the country in which one or both of the couple reside.

Policy then makes two things clear. The genuineness of the de facto relationship does not, in itself, amount to compelling and compassionate circumstances. And cases where the applicant or the sponsor is pregnant at the time of application are not considered to meet the threshold, although exceptional or unique circumstances relating to a pregnancy may.

A partner who holds or has applied for a permanent humanitarian visa. Subregulation 2.03A(4) removes the 12 month requirement in defined humanitarian circumstances. It does not assist most couples.

A final point of law that is often stated wrongly. Failing the 12 month requirement in regulation 2.03A does not mean the couple are not in a de facto relationship. The definition of de facto partner is in section 5CB of the Migration Act 1958, and the factors for assessing it are in regulation 1.09A. Regulation 2.03A is a separate, additional criterion assessed at time of decision. Policy warns delegates that it would be an error of law to find a couple fail section 5CB because the relationship is shorter than 12 months.

Check 5: what happens to your work rights and your ability to travel?

This is the check that decides how the couple actually live for the months the application takes, and it contains the one piece of genuinely good news in this article that competitor content routinely gets wrong.

Your bridging visa does not inherit the no work condition

Most visitor visas carry condition 8101, which provides that the holder must not engage in work in Australia. Many people assume that the bridging visa granted with their partner visa application will carry the same restriction. For onshore partner visa applicants, it does not.

A legislative instrument made under paragraph 010.611(1)(c) of Schedule 2 provides that a Bridging visa A granted to a Subclass 820 or Subclass 801 applicant, where the substantive visa application has not been finally determined, is granted with nil conditions. The equivalent instrument under paragraph 020.611(1)(b) does the same for a Bridging visa B. The instrument has applied to initial and replacement bridging visas granted since 24 November 2012.

Nil conditions means what it says. No condition 8101. No study restriction. The applicant has full permission to work from the moment the Bridging visa A comes into effect.

The timing qualification is the part to understand. A Bridging visa A does not come into effect on grant. It comes into effect when the substantive visa it replaced ceases. Until the visitor visa expires, the visitor visa is still the operative visa and condition 8101 on it still applies. Working before that point is a breach of a visa condition, and breach of a condition is a ground for cancellation under paragraph 116(1)(b) of the Migration Act 1958.

There is no way to shorten that gap by having condition 8101 removed from the visitor visa. Departmental policy is explicit that once a Subclass 600 visa has been granted with condition 8101 imposed, there is no legal basis to remove or waive it. A Subclass 600 visa applied for in Australia can be granted without condition 8101, but only where the applicant satisfies all four financial hardship criteria in subclause 600.611(4), which require, among other things, that the hardship resulted from changes in circumstances after entering Australia and that the applicant cannot leave Australia for reasons beyond their control. Those criteria are not directed at couples waiting on a partner visa.

Travel is not automatic

A Bridging visa A carries no travel facility. If the holder leaves Australia, the Bridging visa A ceases and does not permit re-entry. A holder who needs to travel must apply for and be granted a Bridging visa B before departing, and must return within the travel facility period specified on it.

A Bridging visa B granted to an onshore partner visa applicant also carries nil conditions under the instrument described above.

For anyone affected by a section 48 bar, subsection 48(3) means that travelling out and back on a Bridging visa B does not reset the bar.

Check 6: what you told the Department when you applied for the visitor visa

This is the check nobody wants to have, and it is the one a lawyer will ask about first.

Clause 600.211 requires a visitor visa applicant to have a genuine intention to stay temporarily in Australia. If a person applied for a visitor visa while already intending to remain in Australia permanently with a partner, the information given in that application may have been false or misleading.

Two separate consequences follow, and they operate independently of each other.

Cancellation of the visitor visa

Section 116 of the Migration Act 1958 allows a visa to be cancelled where the decision to grant it was based on a fact or circumstance that is no longer the case or that never existed, where the holder has not complied with a condition, or where a prescribed ground in regulation 2.43 applies. Subsection 116(1AB) deals separately with incorrect information taken into account in granting a visa. Section 109 deals with incorrect information given by the holder.

A cancellation carries consequences well beyond the loss of the visitor visa. It makes the holder unlawful, it triggers the section 48 bar, and it may engage the exclusion periods in public interest criterion 4014 depending on how and when the person departs.

Public interest criterion 4020

Public interest criterion 4020 is a criterion for the grant of the partner visa itself. It is not satisfied where the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular, either in relation to the partner visa application or in relation to a visa the applicant held in the 12 months before that application was made.

That 12 month look back is the reason this check belongs in an article about tourist visas. A statement made on a visitor visa application about intended length of stay, or about the purpose of the visit, can be reached by public interest criterion 4020 when the partner visa is assessed.

The threshold is not carelessness. In Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42, the Full Court held that the information or document must have the quality of purposeful falsity, and that an applicant who can explain an innocent mistake does not fail the criterion. The applicant does not need to have been knowingly involved for the criterion to bite, but genuine error is answerable.

Failure carries a non-grant period affecting future applications. The waiver in public interest criterion 4020(4) is available only where there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

What follows from all of this is straightforward. Where the relationship began after arrival, or where plans genuinely changed after arrival, that sequence should be documented clearly and put forward as part of the application, with dates. Where it did not, that needs to be raised with a lawyer before anything is lodged, not after a section 57 natural justice letter arrives.

Subclass 820 onshore or Subclass 309 offshore: how the choice is made

Both visas lead to permanent residence. The Subclass 820 leads to the Subclass 801. The Subclass 309 leads to the Subclass 100. The relationship requirements are materially the same. The choice is not about which visa is better. It is about which application the applicant is legally able to make and be granted.

An onshore Subclass 820 application is the right answer where the visitor visa does not carry condition 8503, the application can be lodged before the visitor visa ceases, and the relationship meets the length requirement or an exception applies. The applicant stays in Australia, holds a bridging visa with nil conditions, and works.

An offshore Subclass 309 partner visa is the right answer where condition 8503 applies and no waiver ground exists, where the visitor visa has already ceased and Schedule 3 cannot realistically be waived, or where the applicant needs to be outside Australia for other reasons. The trade off is that the applicant is outside Australia while the application is processed.

A Subclass 300 prospective marriage visa is a third path for couples who intend to marry and are not yet in a de facto relationship of sufficient length.

One further check applies to the Australian partner rather than the applicant. Regulation 1.20J limits how many partner visas a person may sponsor and how far apart those sponsorships must be, and other limitations apply where the sponsor has particular convictions. A sponsor who has sponsored before should read the page on partner visa sponsorship limitations before the couple settle on a plan.

How My Migration Lawyers approaches a tourist visa to partner visa matter

My Migration Lawyers is an Australian immigration law firm acting for couples across Australia, led by Principal Lawyer Weiwei Zhang. Consultations are conducted by video, so where a client lives makes no difference to how the matter is run.

On a matter of this kind, the firm's work follows the order set out in this article.

The starting point is the client's visa record. The firm checks the actual grant notice and the Department's records for the conditions imposed on the current visitor visa, the stream it was granted in, the date it ceases, and whether any visa has been refused or cancelled since the client last entered Australia. That check is done by the firm using the client's passport details already on file, not left to the client. Almost every serious problem in this area is visible at that stage and is fixable only at that stage.

The firm then advises, in writing, which application is legally available: an onshore Subclass 820, an offshore Subclass 309, a waiver request, or a combination, and what the timing has to be. Where the answer is that an onshore application cannot succeed, the client is told so directly. An article or a consultation that only tells a couple what they want to hear is of no use to them.

From there, the firm prepares the application. That means assembling the relationship evidence in the form the Migration Regulations require, preparing the client's own account of the relationship as the client's own evidence, reviewed and corrected by the client, and identifying in advance the matters a delegate is likely to raise so that they are answered in the application rather than in a response to a section 56 request months later.

Where the Department does write, whether that is a request for further information under section 56 or a natural justice letter under section 57, the firm settles the response and the supporting material. Where an application has already been refused, the firm advises on review in the Administrative Review Tribunal, where the deadline is short and strictly applied and is not extendable.

My Migration Lawyers charges fixed fees agreed before the work starts, so the cost of the matter is known at the outset.

If you are in Australia on a visitor visa and considering a partner visa, the most valuable thing you can do is get the conditions on your current visa checked before it ceases. You can request a consultation online, or read more about how the firm acts on these matters on the partner visa lawyers page.