Is My Offshore Partner Visa Invalid If I Lodged It in Australia?

Why is a Subclass 309 lodged in Australia invalid?

A Subclass 309 lodged in Australia is invalid because the location of the applicant at the moment of lodgement is a validity requirement, not a matter of discretion. Paragraph 1220A(3)(b) of Schedule 1 requires the applicant to be outside Australia when the application is made. It does not matter that the sponsor lodged the form from Australia, which is normal. What matters is where the applicant physically was. Our article on offshore lodgement mistakes explains how this error usually happens.

How do Australian sponsors usually make this mistake?

Australian sponsors usually make this mistake by lodging the Subclass 309 while their partner is visiting on a visitor visa, believing that the offshore visa is simply the one for partners from overseas. The visa class is decided by where the applicant is on the day of lodgement, not by their nationality or home country. Our article on the offshore partner visa and our page on the Subclass 309 visa explain the location rules.

What can we do if our offshore application was lodged in Australia?

A couple whose offshore application was lodged in Australia can usually choose between a new Subclass 309 lodged once the applicant has left Australia, or an onshore Subclass 820 lodged while the applicant is still in Australia, if the applicant is eligible. The onshore option is not available where the applicant's visa carries condition 8503 No Further Stay and no waiver has been granted. Our article on which partner visa pathway to choose compares the two.

Is an onshore partner visa possible if my partner is on a visitor visa?

An onshore partner visa is possible for a partner on a visitor visa if the visitor visa does not carry condition 8503, or if that condition has been waived first. The Subclass 820 also requires the couple to meet the relationship requirements at lodgement, including the 12-month de facto requirement unless the relationship is registered or an exception applies. Our article on a partner visa while on a tourist visa explains the risks, and our page on the Subclass 820 visa sets out the onshore rules.

What happens to the charge we paid?

The charge paid for an invalid Subclass 309 application is not applied to a new application automatically. A refund may be available in some cases, but it must be requested and is decided by the Department. Couples should not wait for the refund before lodging a valid application, because delay can affect the applicant's options, especially if the applicant is in Australia on a temporary visa that is about to end.

How does My Migration Lawyers fix an offshore application lodged in Australia?

My Migration Lawyers fixes an offshore application lodged in Australia by confirming the applicant's travel dates against the lodgement time, checking the applicant's current visa and conditions, and then advising the sponsor whether an onshore Subclass 820 or a fresh offshore application gives the better position. The firm prepares the replacement application with the evidence already gathered and sets the lodgement date carefully, so the location requirement is satisfied beyond doubt. Sponsors can read our guide to the onshore partner visa and request a consultation through the form on this page.