Where To Go From Here

Offshore Partner Visa (Subclass 309 / 100)

This is what you go for when applying for a partner visa from outside of Australia. So why should you apply for your partner visa application overseas and what are the implications? We're here to discuss exactly that.

When you make an application from outside of Australia, the application is known as the subclass 309/100 visa application. This is a combined application, made up of two stages. You will make a payment to the Department of Home Affairs once but you will typically follow a two-stage process before you acquire permanent residency.

The first-stage partner visa (subclass 309) is granted only when the applicant is outside Australia. 2 years following the grant of your first-stage partner visa, you will become eligible to apply for your second-stage partner visa (subclass 100), i.e. Australian permanent residence.

Eligibility

If you are a visa applicant and you:

  1. are from (what the Department of Home Affairs consider to be) "high-risk" countries to migrate to Australia;
  2. had your refused in Australia and could not apply for another visa onshore (note that exceptions apply if you had a partner visa application refused in the last 2 years);
  3. had overstayed their visa when in Australia and left the country on a bridging visa E; or
  4. had an 8503 No Further Stay condition on their last Australian visa;

you may be eligible to apply for a partner visa from outside of Australia.

High-risk countries

Any country/region that does not fall under this list would be considered to be "high-risk" presently in the eyes of the Department.

  1. Andorra
  2. Austria
  3. Belgium
  4. Bulgaria
  5. Brunei
  6. Canada
  7. Croatia
  8. Cyprus
  9. Czech Republic
  10. Denmark
  11. Estonia
  12. Finland
  13. France
  14. Germany
  15. Greece
  16. Hong Kong Special Administrative Region (PRC)
  17. Hungary
  18. Iceland
  19. Republic of Ireland
  20. Italy
  21. Japan
  22. Republic of Korea
  23. Latvia
  24. Liechtenstein
  25. Lithuania
  26. Luxembourg
  27. Malaysia
  28. Malta
  29. Monaco
  30. The Netherlands
  31. Norway
  32. Poland
  33. Portugal
  34. Republic of San Marino
  35. Romania
  36. San Marino
  37. Singapore
  38. Slovak Republic
  39. Slovenia
  40. Spain
  41. Switzerland
  42. Sweden
  43. Taiwan
  44. United Kingdom of Great Britain and Northern Ireland
  45. United States of America Vatican City

When you make an application from outside of Australia, the application is known as the subclass 309/100 visa application. This is a combined application (link FAQ) , made up of two stages. The first-stage partner visa (subclass 309) can only be granted when the applicant is outside Australia.

You can include dependent children as additional applicants for this visa application. All applicants of this visa must satisfy health and character requirements.

Visa Application charge

Visa application charges are paid directly to the Department of Home Affairs.

The visa application charge for the main visa applicant is $7715.

Dependents applicants over 18 incur an additional visa application charge of $3860.

Dependents applicants under 18 incur an additional visa application charge of $1935.

Note that although this application charge is for a combined subclass 309/100 visa application, you may still be expected to submit further application forms and updated evidence once you qualify for your second-stage subclass 100 partner visa.

The sponsor must be a "settled" Australian citizen or permanent resident

There is no strict interpretation of what "settled" means in the legislation. The Department of Home Affairs clarifies in its policy that it usually means that the partner visa sponsor is required to have lived in Australia for a period of 2 full years immediately prior to the application date.

The longer that the partner visa sponsor has been living out of Australia, the more evidence is required to prove a continuous connection to Australia despite the absence.

Critical requirements

You and your partner will need to be in a "genuine and continuing" relationship in the eyes of Australian immigration law. We have discussed this at length here.

The 12-month minimum relationship period requirement

If you are in a de facto relationship, you must prove to the Department that your relationship has continued for at least 12 months.

When you register their relationship in the following states and territories, this criterion could be waived:

  1. Victoria
  2. Tasmania
  3. New South Wales
  4. Australian Capital Territory
  5. Queensland

Every state stipulates their own requirements for registration of relationship. Some states require that at least one of the partners show evidence that he/she usually lives in the state that the relationship is being registered in.

When you are able to successfully register your relationship with the relevant state or territory in Australia, you must bear in mind that you are still required to show that you are in a "genuine and continuing" relationship through submitting other forms of evidence. The certificate alone cannot suffice as evidence to ensure a grant of your partner visa.

Where relationship registration is not possible and compelling and compassionate circumstances exist, the 12-month requirement may be waived. This does not include pregnancy.

Examples of compelling and compassionate circumstances include but are not limited to where:

  • the visa applicant has a dependent child from the relationship;
  • de facto relationships are illegal in the country where the visa applicant or both the visa applicant and Australian partner sponsor reside.

Long-term partner relationship

If you and your partner are in what the Department considers to be "a long-term partner relationship", you may be eligible to receive permanent residence straight away.

A "long term partner relationship" is defined to mean the de facto relationship has continued for two years when you have a child of the relationship or three years otherwise.

Simultaneous grant of both visas is not automatically considered by the case officer. You or your legal representative will need to provide substantial supporting evidence and formal written request to the Department and seek their advice on whether this can be granted. Have a chat with us to formulate an evidentiary plan early.

Temporarily living apart?

Long-distance relationships are difficult most couples. The Department sets out additional requirements for couples who have spent time away from living with their partner. Where your physical separation is temporary, it is often possible to show through phone and electronic communication records covering the financial, social, household and commitment aspects of your relationship.

How good is your evidence in the eyes of the Department?

The both of you will know your relationship better than anyone else. The challenge is with proving to Departmental case officers who do not know the both of you or your relationship personally "on paper".

The Migration Act 1958 and Migration Regulations 1994 are the two critical legislations that case officers must refer to when making a decision on your partner visa application. All evidence and answers to the forms that you provide must satisfy requirements of the legislations.

One type of evidence that you provide would be most helpful if other types of evidence can corroborate with the former type of evidence. For example, when you are proving that you and your partner had a wedding ceremony, your can provide photos of the ceremony itself. Case officers may also look at payment for the venue (if applicable), wedding invitations issued to friends and family, and statements from your witnesses who have attended the ceremony that the ceremony did take place. Marriage or relationship registration certificate is also one obvious piece of evidence, but evidencing is much more than providing a certificate.

Why do offshore partner visa applications get refused?

Many couples set out on the partner visa journey thinking as long as their relationship is genuine in their eyes, that their evidence will surely prove that.

Evidencing your relationship can be challenging. More people have their visas refused due to inconsistency of information than having insufficient evidence provided.

We find that most people tend to overlook some of the following:

  1. inconsistent description of relationship between the visa applicant and Australian partner sponsor in statutory declaration
  2. mistakes in dates or facts in witness statements that do not align with evidence presented by the couple
  3. inconsistent information submitted in application forms and evidence
  4. inconsistent declarations or information in visa applicant's previously submitted visa applications or incoming passenger cards

Any inconsistency can potentially trigger the application of Public Interest Criterion 4020 within the migration regulations, which mandates refusal of visa application or even cancellation of visa (of the Australian partner sponsor's visa).

So check your application carefully over and over again! Even if you have engaged a registered migration agent or lawyer to look after your application for you, the responsibility still lies with you to ensure the information that you have provided to your agent or lawyer is 100% accurate.

What are my chances?

Have a look at the following quick list for you to examine whether your relationship has a good chance of meeting the requirements:

It will be helpful if you and your partner can show that you:

  1. Have a certain level of contact and know each other well
  2. Your family and friends are aware of your relationship
  3. See the relationship as a long-term one
  4. Pool your financial arrangements
  5. Have lived together for at least 12 months

If you and your partner are not able to show one or more of the above, it does not automatically mean that the partner visa application is out of the question.

Both the applicant and sponsor must also meet independent character requirements. The applicant must also meet health requirements.

Applying from outside of Australia might work better strategically in situations where you have been refused a visa (other than a partner visa) while in Australia, which imposes additional schedule 3 requirements on you in order to receive a grant. It may also be more feasible for couples who primarily reside overseas.

To check your eligibility requirements in detail and find our your chances of receiving a visa grant, we recommend you seek tailored advice from an experienced registered migration agent who regularly checks against the latest immigration policies and legislative provisions.

Applicants from high-risk countries

If you’re currently waiting for your subclass 309/100 visa to be processed and would like to visit Australia and your country is not on the list above, you may also consider applying for a subclass 600 visitor visa.

New: split-sponsorship provisions

The Department of Home Affairs has informed us of some upcoming changes to partner visa program. Once the new changes are in effect, the Australian sponsor to lodge and receive an approval of their sponsorship application before the visa applicant can lodge a partner or prospective marriage visa application. This means that without an approved sponsorship application from an Australian sponsor, it will no longer be possible for the visa applicant to lodge a visa application first as they have always been able to.

Those who could be affected the most by these changes are sponsors who have criminal history. Applicants who are already in Australia with an upcoming visa expiry can also be affected by this change.

Legislation in relation to the split-sponsorship provisions have already come into effect, but the Department of Home Affairs has not applied these changes to the partner visa program yet.

Still confused? To clarify or plan ahead before these legislative requirements apply to partner and prospective marriage visas, seek professional advice now with a registered migration agent.

At Kin Migration, we are centred on providing timely and tailored support. Book your consultation today for:

  • Strategic advice from an experienced Registered Migration Agent on the critical requirements applicable to you and your significant other
  • Detailed guidance on how to make the best of your evidence
  • A strict focus on the quickest pathway to permanent residency


Disclaimer: The content on this page does not constitute legal or immigration advice. For advice on your specific circumstances, chat to one of our friendly staff to book a qualification session.

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Offshore Partner Visa (Subclass 309 / 100)

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