Can I Get a Partner Visa If I Arrived in Australia Without a Visa?

Does the way I arrived in Australia matter for a partner visa?

The way a person arrived in Australia matters for a partner visa because the Migration Act treats arrival by sea without a visa differently from other unlawful entry. A person who entered Australia by sea and became an unlawful non-citizen as a result is an unauthorised maritime arrival under section 5AA, and a statutory bar then applies. A person who arrived by air without a valid visa is not an unauthorised maritime arrival, but faces other obstacles. Our guide to the onshore partner visa explains the basic Subclass 820 rules.

What is the section 46A bar?

The section 46A bar prevents an unauthorised maritime arrival who is in Australia, and who is an unlawful non-citizen or holds a bridging visa or certain temporary visas, from making any valid visa application, including a partner visa. An application lodged while the bar applies is invalid and cannot be considered. The bar can be lifted only by the Minister personally, where the Minister thinks it is in the public interest, and the Minister is not required to consider a request. Our article on complex partner visa applications explains how barred cases are approached.

How does Schedule 3 apply if I entered without a visa?

Schedule 3 applies to a person who entered without a visa because its criteria cover people who have never held a visa as well as people whose visa has ended. A Subclass 820 applicant in this position must show that the Schedule 3 criteria are met or that compelling reasons justify not applying them. A genuine relationship alone is generally not treated as a compelling reason. Our article on the Schedule 3 waiver submission and the firm's Schedule 3 waivers page explain how the case is built.

Is an offshore partner visa an option?

An offshore partner visa can be an option for a person who arrived without a visa, but leaving Australia must be planned rather than rushed. A later removal, or debts owed to the Commonwealth, can affect a Subclass 309 through the special return criteria and PIC 4004, and the applicant's earlier history will be examined under the character and integrity requirements. The Australian sponsor should understand these issues before the applicant departs. The firm's page on the Subclass 309 visa explains the offshore pathway.

What evidence about my arrival should I gather?

An applicant should gather whatever evidence shows how and when they arrived, every contact they have had with the Department since and every application or visa they have held. Where records are missing, a freedom of information request can obtain the Department's own file. The arrival history must be disclosed accurately, because a version that differs from the Department's records can raise PIC 4020 concerns. Our article on PIC 4020 for partner visas explains that risk.

How does My Migration Lawyers assess a partner visa after arrival without a visa?

My Migration Lawyers first confirms whether the applicant is an unauthorised maritime arrival, because that single fact decides whether a valid application can be made at all. The firm then assesses Schedule 3, the applicant's compliance history and the sponsor's circumstances, and advises whether a request to the Minister, an onshore application or an offshore application is realistic in that case. Couples can raise their situation with our partner visa lawyers.