If you are making an application for an Australian partner visa while you are physically in Australia, the application is known as the subclass 820/801 visa application. This is a combined application which you will make to the Department of Home Affairs. 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 820) can only be granted when the applicant is in Australia.
Following the grant of a the first-stage partner visa (subclass 820), you will be invited to apply for a second-stage partner visa (subclass 801) around 2 years after the grant of your first-stage partner visa. You may not need to apply for your partner visa in two stages if you could be considered by the Department of Home Affairs as being in a "long-term" partner relationship. If you'd like to find out what this means for you, read on.
Specific requirements for the visa applicant will differ depending on the visa that you're holding at the time of making this visa application.
You may include your dependent children as part of this 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 $7850.
Dependents applicants over 18 incur an additional visa application charge of $3930.
Dependents applicants under 18 incur an additional visa application charge of $1965.
Note that even though this application charge is for a combined subclass 820/801 visa application, you may still be expected to submit further application forms and updated evidence once you qualify for your second-stage subclass 801 partner visa.
What are the critical requirements?
One of the most commonly discussed set of criteria are the 4 aspects of what constitutes a "genuine and continuing" relationship. We answer this popular question here.
The 12-month minimum cohabitation requirement
If you are in a de facto relationship, you are required to prove to the Department that your relationship has continued for at least 12 months.
The 12-month cohabitation requirement is a fixed rule set by the government.
The law does state that if your relationship is registered with an Australian state/territory OR you are legally married overseas in a manner that is consistent with the Australian laws, the requirement could be 'waived' in a sense that your partner visa will not be refused on the grounds of not satisfying this requirement.
Registration with the following Australian state/territories may allow you to bypass the 12-month cohabitation requirement:
- New South Wales
- Australian Capital Territory
Each state has their own requirements for registration of relationship. Some require that at least one of the partners usually resides in the state that the relationship is being registered in. You may observe that Western Australia is not one of the states where registering a relationship with the state bypasses the 12-month cohabitation requirement for immigration purposes.
When you are able to successfully register your relationship with the relevant state or territory in Australia, bear in mind that there are still additional hoops you will need to jump through to prove your relationship is genuine and refusal-proof your partner visa application. A relationship certificate alone cannot suffice as evidence to ensure a grant of your partner visa.
Some of the less common ways where this 12-month cohabitation requirement could be waived are: if compelling and compassionate circumstances exist, or your relationship was known to the Department in a previously granted humanitarian visa.
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 - special consideration?
If you and your partner are in a long-term partner relationship in the eyes of the Department and meet the evidentiary threshold, you may be eligible for a simultaneous grant of both the first-stage and the second-stage visas.
A long-term relationship typically means either 3 years of cohabitation if you do not have a child together, or 2 years of cohabitation if you do.
This is not automatically considered by the case officer. Relevant supporting evidence and formal written request needs to be provided to the Department. Get advice from a registered migration agent before lodging your partner visa application to see if you may qualify for special consideration.
8503 "No Further Stay" Condition and Waiver
Have a look at your visa grant letter for your currently valid Australian visa and ensure that you do not have an "8503 No Further Stay" Condition attached to your visa. If you do, then you will not be able to apply for an onshore partner visa unless you are able to waive the "8503 No Further Stay Condition. Typically, the best step forward is to apply for an offshore partner visa or a prospective marriage visa, depending on which one you satisfy the requirements for.
Acquiring an "8503 No Further Stay" Condition Waiver is by no means straightforward. Generally, the Department advises that significant changes must have occurred since you were granted with the visa (which carried the 8503 condition), which were beyond your control, and these changes must constitute "compelling and compassionate" circumstances. "Compelling and compassionate" circumstances, as you might imagine, are not defined in legislation. It is hence considered entirely on a case-by-case basis.
If you have an "8503 No Further Stay" Condition on your visa, you definitely should seek advice from a registered migration agent in relation to your particular circumstances.
Applying as a bridging visa holder or as an unlawful non-citizen.
If you are in Australia and holding only a bridging visa or do not hold any valid Australian visa (i.e. an unlawful non-citizen), take note.
Additional schedule 3 requirements will apply if you are applying as a bridging visa (or non-substantive visa) holder or an unlawful non-citizen.
If you are a visa applicant and you:
- are holding an Australian visa with an "8503 No Further Stay Condition";
- have had a previous Australian visa refusal;
- have a health concern;
- have some criminal history; or
- have dependent children,
it is best that you seek advice from a registered migration agent who will be able to highlight all the risk factors and whether it is possible to make a valid application.
If your Australian partner has sponsored someone else previously or has been sponsored under the partner visa program, restrictions may apply to them. Character requirements also apply to your Australian partner.
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 as I'd always like to emphasise: evidencing is much more than providing a certificate.
How much more? This is where a one-to-one session with our registered migration agent will help you discover.
Why do onshore 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:
- inconsistent description of relationship between the visa applicant and Australian partner sponsor in statutory declarations
- mistakes in dates or facts in witness statements that do not align with evidence presented by the couple
- inconsistent information submitted in application forms and evidence
- 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:
Make sure firstly that your visa does not have an "8503 No Further Stay" condition attached.
It will also be helpful if you and your partner can show that you:
- Have a certain level of contact and know each other well
- Your family and friends are aware of your relationship
- See the relationship as a long-term one
- Pool your financial arrangements
- Have lived together for at least 12 months
- Satisfy the relevant character and health requirements
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.
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.
New: subclass 491 and 494 applications
If you hold a subclass 491 or 494 visa application, you will not be allowed to apply for an onshore subclass 820/801 partner visa application until three years have passed since your last 491 or 494 visa grant.
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.
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 Strategy Session for:
- Detailed advice from an experienced Registered Migration Agent on the critical requirements applicable to you and your significant other
- Expert guidance on how to make the best of your evidence
- Discover short-term and long-term risks with each option available to you
- A strict focus on the most straightforward pathway to permanent residency
Disclaimer: The content on this page does not constitute legal or immigration advice. For advice on your specific circumstances, please book a Strategy Session here to speak to our Australian-registered migration consultant.