Australian Partner Visas – Overview
There are 3 partner visa categories, comprising a total of 5 Visas altogether.
1. The Prospective Marriage (Fiancé) Visa – Subclass 300
This is an offshore visa, designed for an applicant who is engaged to, but not yet married to an Australian citizen, permanent resident or an eligible New Zealand citizen.
This visa allows an applicant to travel to Australia and remain in Australia for a period of 9 months from the date of grant. It is a condition of the visa that the applicant must marry within that 9 month period and lodge a Partner visa application under Subclasses 820/801 while he or she is within Australia.
If the applicant and sponsor marry overseas, then the visa is not appropriate and in most cases they would then need to apply for the Offshore Partner visas under Subclasses 309/100. Note however, that if an applicant makes a Prospective Marriage application and then marries before that application is decided, they are generally not required to make a new Partner visa application and they will be taken to have applied under Subclass 309.
Please note that a Subclass 300 visa cannot be extended or renewed.
It is a requirement that at the time of decision of the application, the applicant and the sponsor must be of “Australian Marriageable age”, which is in general terms 18 years of age. Both must be free to marry and not prohibited to marry under Australian law.
Both the applicant and sponsor must have met and be known personally to one another. In order to prove this, the Department may require evidence of physically contact (such as photographs together, flight tickets proving a meeting and so forth), as well as evidence to show that the couple have conformed to the traditional or culturally appropriate norms of the relationship. They must also display a genuine intention to marry and this is usually done by producing documentary evidence from a religious authority, or marriage celebrant confirming the marriage arrangements. For Australian marriages, a Notice of Intention to Marry (“NOIM”) needs to have been lodged with a marriage celebrant. This document cannot be lodged for less than one month or more than eighteen months before the date of the ceremony.
There must be “real consent” to the proposed marriage and thus a marriage which takes place under duress, mutual incapacity, fraud or mistaken identity, will not be acceptable.
2. The Partner (Provisional) Subclass 309 Visa and the Partner (Permanent) Subclass 100 Visa
The Subclass 309 Visa is a temporary 2 year visa, leading to a permanent Subclass 100 Visa and is for applicants who have either married, or in an existing genuine de facto relationship (See below as to de facto relationships). Note that these may include same sex relationships. An application under Subclass 309/100 is lodged offshore. The Subclass 309 visa will allow an applicant to travel to and remain in Australia for a 2 year period. If the marriage/relationship is still genuine and in place at the end of that time, a Subclass 100 permanent residency visa will be ordinarily granted.
The Subclass 100 Visa is therefore a permanent residency visa which is granted onshore after the criteria for the temporary Visa have been fully met.
3. The Partner (Provisional) Subclass 820 Visa and the Partner (Permanent) Subclass 801 Visa
The Subclass 820 Visa is a temporary visa, whose application is lodged inside Australia, allowing the applicant to remain onshore until the decision to grant a permanent Partner visa under Subclass 801 has been made. It is designed for applicants for are either genuinely married, or in a genuine de facto relationship (See below as to de facto relationships).
The Subclass 801 Visa is therefore a permanent residency visa granted onshore after all of the criteria for the temporary visa under Subclass 820 have been fulfilled.
All these Visas are subject to Public Interest Criteria, character and health requirements. We can provide full advice and assistance in relation to all such matters.
Some points regarding Partner Visas:
The Migration Regulations state that some potential sponsors are disqualified from doing so, by reasons of certain specified factors. For instance, a sponsor who has within a period of 5 years form the grant of a Parent visa to them, under Subclasses 143 or 864, cannot sponsor their spouse for migration into Australia under either Subclasses 309/100 or Subclasses 820/801. This exclusion also applies to Subclass 300. Similarly, sponsors who have registrable offence, either still under charge, or after conviction are similarly excluded. These registrable offences defined under the regulations.
The regulations also impose limitations on how many partners a sponsor may nominate to come to Australia on the Partner visa subclasses. A sponsor who fits one of the descriptions set out in the regulations will be precluded from sponsoring anyone else, unless they can obtain a sponsorship waiver. Such waivers are only granted where there are “compelling reasons”. The description of such persons who are precluded from further sponsorship, include for instance where a sponsor has previously nominated a partner and a visa was granted where less than 5 years has passed from the first application to the date of the second application decision. Similarly where a sponsor has already sponsored 2 different people and those visas were granted, they will be prevented from sponsoring anyone else, unless they have received a waiver of the sponsorship provisions. People who themselves were sponsored and now wish to sponsor someone else, must also wait 5 years from the date that they were first sponsored. Please note that the term “compelling reasons” has a particular meaning.
De Facto Relationships
Genuine de facto relationships are recognised just as marriages are, under the regulations, but to prove such a relationship, de facto partners much show that though that they not in a “married relationship’, they:
1. Have a mutual commitment to a shared life, to the exclusion of all others;
2. That the relationship between them is genuine and continuing;
3. That they live together, or do not live separately and apart on a permanent basis; and
4. That they are not related by family.
Note that these may include same sex relationships.
The regulations separately impose a minimum length of relationship requirement on persons claiming a de facto relationship. This minimum length of time is 12 months, but does not apply to visa applicants who can establish compelling and compassionate circumstances, or other limited circumstances.
See also our article on “In Australia unlawfully and want to make a Partner Visa application?”