309 Partner Visa

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.

As of 01 July 2024, the first-stage partner visa (subclass 309) can be granted in or 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.

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. 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.

What are the critical requirements?

1. The visa applicant is in a genuine and continuing married relationship with an Australian citizen, permanent resident, or Eligible New Zealand citizen OR they are in a genuine and continuing de facto relationship with an Australian citizen, permanent resident, or Eligible New Zealand citizen for at least 12 months (except if they are able to register their relationship in an Australian state or territory)

2. The visa applicant must have good character and health. Limited exceptions apply.

3. The sponsor must have good character, not sponsored in the last 5 years, not been sponsored in the last 5 years, and not sponsored someone for more than twice in their life time. Limited exceptions apply.

4 Factors of Genuine and Continuing Relationship

When applying for a partner visa, it must be clear to the Department of Home Affairs  that your spousal or de facto relationship is exclusive, "genuine and continuing". This means showing you're committed to a shared life, exclusive of others, and either living together or not permanently separated. Having a genuine relationship doesn't automatically mean you'll meet the legal requirements. Each relationship is unique, so there's no one-size-fits-all approach to proving your case.

However there is a framework in which the case officer will review the genuineness of your relationship. In order to prove that you are in a "genuine and continuing" relationship, you are expected to provide clear evidence covering all 4 aspects of your relationship: financial, household, social and commitment.

The Migration Regulations 1994 points us to the specifics of these requirements for spouses and de facto partners.

We provide some examples of what to include for each aspect of your relationship below.

Financial Aspects of Your Relationship

• Joint property ownership documents (e.g., house deed, car registration)
• Shared insurance policies (e.g., home, car, or life insurance)
• Joint bank account statements (from account opening to recent transactions)
• Shared household bills (e.g., utility bills, internet, streaming services)
• Legal documents showing mutual commitments (e.g., power of attorney, loan guarantor)
• Evidence of financial support (e.g., money transfers, shared credit card statements)

Household Aspects of Your Relationship

• Lease agreement or mortgage documents with both names
• Utility bills addressed to both partners
• Correspondence from various sources sent to your shared address
• Documents related to joint responsibility for children (if applicable)
• Evidence of shared subscriptions (e.g., gym membership, streaming services)

Social Aspects Your Relationship

• Joint invitations to events (e.g., wedding invitations, party invites)
• Photos from shared social outings or vacations
• Social media showing your relationship
• Letters from government bodies addressed to both partners
• Evidence of joint memberships (e.g., sports clubs, religious organisations)
• Travel documents showing trips taken together (e.g., flight bookings, hotel reservations)

Commitment Aspects of Your Relationship

• Communication records during periods of separation (e.g., emails, text messages, phone bills)
• Documents showing the length of your relationship (e.g., dated photos, old correspondence)
• Wills naming each other as beneficiaries
• Evidence of long-term plans (e.g., engagement ring purchase, wedding plans)
• Proof of pregnancy or joint parenting plans (if applicable)
• Any other documents demonstrating your intention for a shared future

We go into further detail on the above in this article too. Every couple's story is unique. Your task is to show how your relationship meets the legal criteria. If you're unsure about your evidence or have complex circumstances, consider seeking advice from a registered migration agent or lawyer. Remember, it's not just about having a genuine relationship – it's about effectively demonstrating it to meet visa requirements.

When the offshore partner visa may be more suitable than the onshore partner visa

1. When your country of passport is from (what the Department of Home Affairs consider to be) a "higher-risk" country
2. When you had a previous visa cancellation
3. When you had a previous visa refusal
4. When you previously overstayed your last visa in Australia and last departed Australia as a bridging visa E holder

Higher-risk countries

Any country/region that does not fall under this list would be considered to be higher risk presently in the eyes of the Department, and therefore will attract more scrutiny in their applications.

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

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 Australian 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 only require that one of the partners show evidence that he/she usually lives in the state that the relationship is being registered in. This means that it can be possible for the Australian partner to register the relationship when their partner is outside Australia and has difficulties securing a temporary visa (such as a visitor visa or working holiday visa) to enter first.

Even in circumstances where you have not lived together for at least 12 months, there is scope for submitting a partner visa application. The law states 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 12-month requirement could be 'waived' in a sense that your partner visa will not be refused on the grounds of not satisfying this requirement.

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 - immediate PR grant?

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" partner relationship under Migration Regulations is defined as:

• A spousal or de facto relationship lasting at least 3 years, or
• A spousal or de facto relationship of at least 2 years if there's a dependent child of the relationship

"Dependent Child of the relationship" typically refers to:

• A biological child of both the visa applicant and sponsor
• A child born through surrogacy to both parties
• A child adopted by both the visa applicant and sponsor

Step-children are generally not considered "children of the relationship" for these requirements.

Immediate permanent residency is not automatically considered by the case officer. Sufficient relevant supporting evidence and formal written request must be provided to the Department.

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.

Sponsorship Eligibility

Sponsorship Obligations

As a sponsor, you must ensure your partner's basic living expenses are covered, including housing and financial support.

For offshore partner visa applicants: The 2-year period begins when the visa holder arrives in Australia.

When You May Not Be Allowed To Sponsor

You may not be eligible to sponsor someone for a 309 visa if:

1. You've previously sponsored or been sponsored as a partner
2. You've sponsored two or more fiancés for migration
3. You've sponsored another fiancé or partner in the last 5 years
4. You were sponsored as a fiancé or partner in the last 5 years
5. You hold a Woman at Risk (subclass 204) visa granted in the past 5 years and wish to sponsor your former partner from the time of visa grant
6. You are or were a contributory parent category visa holder

For contributory parent visa holders:

• If granted on or after July 1, 2009, you cannot sponsor a partner for 5 years from your visa grant date if you were in a married or de facto relationship with them at or before your visa grant

Note: Exceptions may apply in compelling circumstances, and waivers might be considered in some cases.

Lesser known facts about the 309 visa

Visa Application charges

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

The visa application charge for the main visa applicant is A$9095.

Dependents applicants over 18 incur an additional visa application charge of A$4550.

Dependents applicants under 18 incur an additional visa application charge of A$2280​..

Note that although this application charge is for a combined subclass 309/100 visa application, you will still be expected to submit further application forms and updated evidence once you qualify for your second-stage subclass 100 partner visa if you're not deemed to have been in a long-term partner relationship.

Complications

Marriage breakup / relationship breakdown/death of sponsor

Generally, the breakdown of the relationship can lead to the refusal of the visa application. The partner visa is granted based on the genuineness and continuity of the relationship. If the relationship ceases to exist, the fundamental basis for the visa is no longer valid. The visa applicant is obligated to inform the Department of Home Affairs as soon as possible if the relationship ends. Failure to notify the Department of Home Affairs can have negative implications for future visa applications.

There may be scope for the partner visa to be granted in the following circumstances:

1. If there are children involved, especially children of the relationship or children being cared for by the couple, their welfare is taken into consideration.
2. If the relationship breakdown is due to family violence during the relationship, the applicant may still be eligible for the partner visa under certain circumstances. The applicant would need to provide evidence of the family violence during the span of the relationship.
3. In cases where the sponsoring partner passes away, but the relationship was genuine and continuing until the sponsor's death, the applicant may still be eligible for permanent residency.

In the above-mentioned scenarios, your case is regarded as a more complex one and the best course of action is relevant legal advice and advice from an immigration advisor.

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.

Common mistakes we've seen from self-lodged applications include:

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, if they're a permanent resident instead of a citizen), leading to the aforementioned 3-year ban.

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 resources
5. Have lived together for at least 12 months

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.

How long does visa processing take for a subclasss 309 partner visa?

Current processing times are between 13 and 25 months for 90% of applications, but this is subjected to change from month to month.

Applicants from higher-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.

Kin Migration offers expert support for partner visas at any stage, backed by experienced registered migration agents and lawyers. Our extensive experience and deep understanding of immigration law ensure top-quality advice and representation. We recognise the intricacies of visa appeals and are dedicated to guiding you through this complex process with assurance. Whether you're contesting a visa refusal, seeking clarity on your visa status, or exploring other visa possibilities, we commit to championing your immigration goals and working towards a favourable outcome.

What happens if my 309 partner visa is refused?

The refusal of a partner visa can be a heart-wrenching experience, leaving couples in a state of limbo and uncertainty. Common reasons for refusal include insufficient evidence of a genuine relationship, failure to meet health or character requirements, or incomplete documentation. Understanding the specific grounds for refusal is crucial in determining the next steps.

Lodging an appeal with the Administrative Review Tribunal (ART) within 70 days

When your 309 partner visa application is refused, lodging an appeal with the Administrative Review Tribunal (ART) is often the first course of action many couples consider. This process allows for an independent review of your case, but it's crucial to act quickly. Your Australian sponsor has 70 days from the date of the refusal decision if you're outside Australia at the time of decision.

The countdown for your appeal period starts from the moment you are legally considered to have received the visa refusal decision. This "deemed receipt" date varies depending on how the decision was communicated to you:

1. Email notification: If the decision was sent to you via email, you're considered to have received it at the end of the day the email was sent.
2. Postal notification: If the decision was mailed to you, you're considered to have received it seven days after the date printed on the refusal letter.

As of October 2024, the ART application fee is A$3,496. The appeal process involves several steps: submitting your application for review, receiving a confirmation and case number, providing any additional supporting documents, attending a hearing (either in person or via video conference), and finally, receiving a decision. While this process allows you to present new evidence and have your case heard by an independent body, it's important to be prepared for a potentially lengthy and stressful journey. The entire process can take several months to over a year, and there's no guarantee of a successful outcome.

Navigating an appeal can be overwhelming, which is why many turn to the expertise of a registered migration agent. At Kin Migration, we offer tailored guidance based on your specific circumstances, potentially increasing your chances of a successful application and alleviating some of the stress associated with the process.

It's important to weigh this against the additional expenses involved, keeping in mind there are no guarantees of success. Each couple must carefully consider their unique situation, weighing the pros and cons of each option to determine the best path forward in their journey to reunite and build a life together in Australia.

The content on this page does not constitute legal or immigration advice. Australian immigration doesn't have to be complex and we can help with your unique circumstances. To seek legal advice or information that is specific to your situation, please contact us.