How do I achieve permanent residency with the partner visa?

The Australian Partner Visa allows spouses or de facto partners of Australian citizens, permanent residents, or eligible New Zealand citizens to live in Australia. The application process generally involves two stages:

1. Temporary Partner Visa (Subclass 820): This is the first stage and allows you to stay in Australia temporarily.

2. Permanent Partner Visa (Subclass 801): You can typically apply for permanent residency 2 years from the date you first submit your partner visa. For example, you may submit a partner visa in Australia (subclass 820 visa) on 01 January 2023 and you will be eligible to apply for the permanent partner visa (subclass 801 visa) by 01 January 2025, assuming your subclass 820 visa was granted.

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, superannuation beneficiary listing
• 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.

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 at the time of application.

The law does state that if you are legally married overseas or in Australia at the time of application 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.

If your relationship is registered with an Australian state/territory by the time of visa decision, the 12-month cohabitation requirement can also be waived.

Registration with the following Australian state/territories may allow you to bypass the 12-month cohabitation requirement:

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

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. If you live in Western Australia or the Northern Territory, you cannot register your relationship to bypass the 12-month cohabitation requirement for immigration purposes. Some couples may choose to marry in these circumstances.

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 - 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.

Sponsorship Eligibility

Sponsorship Obligations

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

For onshore partner visa applicants: The 2-year period begins when the temporary partner visa is granted.

When You May Not Be Allowed To Sponsor

You may not be eligible to sponsor someone for 820 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.

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.

Temporarily living apart?

Couples in long-distance relationships often face challenges. For those who have experienced periods of physical separation, the Department imposes extra criteria. If your time apart is temporary, you can usually demonstrate the ongoing nature of your relationship. This can be done by providing records of phone calls and electronic communications that highlight various aspects of your partnership, including financial arrangements, social interactions, household matters, and commitment to each other.

Form 888 Witness Statements

You will typically need two (2) Form 888s to support your partner visa application. A few pointers: 

1. It's beneficial to have multiple Form 888s from a variety of people who know the couple in different capacities (e.g., family, friends, colleagues).
2. Ensure that the information provided is consistent with other evidence and statements given in the visa application.
3. Being detailed and specific in observations and statements will provide a stronger case than vague or general comments.

Always ensure that the information provided on the form is truthful and accurate. Providing false or misleading information can lead to serious consequences both for the declarant and the visa applicant.

Length of visa

Subclass 820: When your subclass 820 visa is granted, the grant letter will typically show the length of stay to be “unlimited” - however please do not be mistaken, as this just means the department is waiting to assess the second-stage subclass 801 (permanent visa). Generally you will be on the subclass 820 visa for approximately 1.5 years, but this period may be shorter or longer depending on when the subclass 801 visa is assessed.

Subclass 801: When your subclass 801 visa is granted, you will be a permanent resident of Australia. However, your re-entry to Australia will only be valid for 5 years. If you intend to travel internationally and return to Australia after the 5 years are up, you will need to apply for and be granted a resident return visa (subclass 155 visa) before you leave Australia.

Planning ahead

When preparing a Subclass 820 visa or Subclass 309 Partner Visa application, applicants can encounter several challenges:

Common issues

Duration of relationship

We have come across some applicants who have only been living together for a few weeks or a few months, and may find it challenging to gather sufficient evidence across the 4 aspects of their relationship.

Incomplete or Incorrect Documentation or Information

Mistakes or omissions in the application can result in delays, requests for more information, or even visa refusals.

Long processing times

Current processing times are approximately 10 months for 50% of the applications, and 23 months for 90% of the applications, subjected to change from month to month.

De facto relationship

Some applicants might mistakenly assume their relationship qualifies as de facto under Australian immigration law when it might not meet the strict definition. To satisfy this definition, the applicant must show evidence supporting an intertwined life between themselves and the sponsor (see “4 aspects of a genuine and continuing relationship”)

Other complications & considerations

Previous de facto relationships and traditional marriages

Whilst many de facto relationships would not have come with a certificate, it is still essential for you to declare any past de facto relationships. For others that have obtained a certificate with a previous partner, it is essential that they ensure the cessation of the previous relationship is reported to the authorities.

One of our clients, who is now in a new de facto relationship with her current partner, found out through a consultation with us that she had forgotten to dissolve another de facto relationship years ago with an ex-partner! This situation can prove to be slightly tricky if your visa is running out and you have not lived together with your current partner for 12 months yet.

Traditional marriages

Previous traditional marriages may also add complication to your prospective marriage visa or partner visa process. Even though some traditional marriages may not be recognised as legal under Australian law, others may actually be considered legal here if it satisfied the relevant requirements of a legal marriage under the Australian Marriage Act. It is worthwhile seeking legal advice if you have concerns about the status of any previous relationships of yours or your partner’s affecting your current partner visa application.

Dependent applicants

For applicants with children under 18, the most straightforward pathway is usually to include these children as dependents in the initial subclass 820 visa application. This allows the entire family unit to be processed together.

However, if circumstances change after the subclass 820 visa is granted - for instance, if you have or adopt a child later - these dependent children who are not Australian citizens or permanent residents may become eligible for a subclass 445 visa (Dependent Child visa). The subclass 445 visa allows these children to join you in Australia while you wait for the decision on your permanent Partner visa (subclass 801).

Lesser known facts about the 820 visa

Changes in circumstances

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 subclass 801 partner visa to be granted in the following circumstances:

1. If there are dependent children of the relationship 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 after the grant of the subclass 820 visa but before the grant of the subclass 801 visa, but the relationship was genuine and continuing until the sponsor's death, the applicant may still be eligible for permanent residency.

We explore these topics further in our blog article, "What Happens When Your Relationship Breaks Down?".

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.

Why do partner visas 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:

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:

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
6. 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.

How much does a partner visa cost?

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

Dependent child over 18 incurs an additional visa application charge of A$4550.

Dependent child under 18 incurs an additional visa application charge of A$2280​.

Note that even though this application charge is for a combined subclass 820/801 visa application, you will still be expected to submit further application forms and updated evidence once you qualify for your second-stage subclass 801 partner visa if you are deemed to not have been in a long-term relationship.

Restrictions on subclass 491 and 494 holders

If you hold a subclass 491 or 494 visa, 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.

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 820 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 21 days

When your 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. You have a limited window to appeal - just 21 days from receiving the refusal decision if you're in Australia.

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.

In cases where exceptional circumstances exist, seeking ministerial intervention is an option, albeit a last resort. This involves writing directly to the Minister to explain your unique situation. If successful, it can override previous decisions. However, it's important to note that this option is rarely granted and typically only considered for cases with compelling humanitarian grounds or significant public interest.

Another alternative to consider is applying for an offshore partner visa. This strategy requires you to leave Australia (if you're currently here) and submit your application from abroad. While this approach may be viewed more favourably by immigration authorities and gives you time to build a stronger case, it comes with significant drawbacks. You'll face separation from your partner, which can be emotionally challenging, and the processing times for offshore visas can be lengthy.

Navigating these complex options 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.