Proving a genuine relationship for a subclass 820/801 partner visa

A Subclass 820/801 onshore partner visa is decided on one question: whether the relationship is genuine and continuing. The applicant answers that question with evidence, and the strongest applications share one feature. Their evidence is consistent, clearly dated, and spread across the four aspects of a relationship set out in the Migration Regulations 1994. Applications tend to fail when the evidence concentrates on one aspect and leaves the others thin.

A decision-maker applies a set framework, the four aspects are weighed against each other, persuasive evidence takes a recognisable form under each heading, the 12-month rule applies to de facto applicants, and a small number of gaps most often lead to a request for further information or a refusal.

The framework: regulation 1.15A(3)

The onshore partner visa is granted in two stages. One application is lodged for both the temporary Subclass 820 and the permanent Subclass 801. The 820 is decided first. The 801 is decided later, usually about two years after lodgement, provided the relationship is still genuine and continuing at that time. Both stages turn on the same question.

Regulation 1.15A of the Migration Regulations 1994, headed Spouse, governs how a married relationship is assessed, and regulation 1.15A(3) directs the decision-maker to consider four matters: the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other. These four aspects are the analytical spine of every partner visa assessment. A parallel provision, regulation 1.09A, headed De facto partner and de facto relationship, applies the same four matters to de facto applicants. Organise the evidence under these four headings deliberately, rather than lodging it as a single undifferentiated bundle.

How the four aspects are weighed

The four aspects are the lens through which the decision-maker forms an overall view of whether the relationship is genuine and continuing. Understanding how they interact separates a strong application from a merely large one.

The leading authority is He v Minister for Immigration and Border Protection [2017] FCAFC 206. The Full Federal Court held that when assessing whether a relationship is genuine and continuing, the requirement to consider the circumstances in regulation 1.15A(3) obliges the decision-maker to make a finding on each of the listed matters, even if the finding is that no conclusion can be reached on it; the case concerned a married couple under regulation 1.15A. The overall assessment remains a single evaluative judgment, so a weakness in one area does not by itself defeat the application, but the reasons must show that every matter was considered and decided.

Two consequences follow. First, no single aspect is decisive. A couple with modest finances is not disqualified if the household, social and commitment evidence is strong, because the decision-maker weighs the aspects together and reaches an overall conclusion. Second, none of the four aspects can be passed over. Because the reasons must show that each matter was considered, an application that says nothing about one aspect gives the decision-maker nothing to weigh there, and invites the inference that there is nothing to say. Material should therefore go before the decision-maker under each heading, even though the application need not succeed on every heading.

A concrete example of the weighing is 1824867 (Migration) [2023] AATA 1111. There, a Subclass 820 refusal was set aside once the Tribunal was satisfied the relationship was genuine and continuing. The couple had pooled their finances and shared day-to-day financial responsibilities, and they had an Australian-citizen child together. A Schedule 3 waiver was also applied so that the application could proceed. The case shows how the financial aspect and the nature of the commitment can reinforce one another: pooled, ordinary, shared finances read alongside a shared child are the kind of interlocking evidence across several aspects that a decision-maker finds persuasive. The balance and coherence of the picture carries the decision, not the size of the file.

Financial aspects

This aspect concerns whether the couple share their finances, not whether they are wealthy. The decision-maker is looking for pooled resources, shared liabilities and joint financial decisions.

Documents that carry weight include joint bank account statements that show regular, everyday use by both people, rather than an account opened shortly before lodgement. Shared liabilities also demonstrate financial interdependence: a lease in both names, a joint mortgage, joint utility accounts, or shared insurance policies. So do records of one partner supporting the other, transfers between accounts, and joint ownership of significant assets. Naming each other as a beneficiary on superannuation or an insurance policy is a deliberate step that the decision-maker will treat as meaningful.

Duration and ordinary use matter most here, and this is where the most common failure appears: thin financial evidence. A joint account with only a few transactions, or opened weeks before lodgement, suggests the account was created for the application. Applicants under-evidence this aspect more than any other, because they assume photographs and statements will carry the case. The pooled, day-to-day finances that persuaded the Tribunal in 1824867 are the standard to aim for. Statements that span many months and show rent, groceries and bills paid by both partners reflect a shared financial life.

Nature of the household

This aspect concerns how the couple run a shared home and divide domestic responsibilities. Couples who live together often under-document it, because the arrangements feel too obvious to prove.

Useful evidence includes correspondence addressed to both partners at the same address over a period of time, a residential lease or property title in both names, and a signed statement describing how chores, cooking, bills and any caring responsibilities are divided. Mail sent to both partners at one address by a range of senders, such as government agencies, banks and service providers, is persuasive because it is difficult to arrange artificially. Joint ownership of the home is strong evidence. Where the couple rent, both names should be on the lease where possible.

A couple who do not live together full time should state this plainly, explain why, and provide evidence of the living arrangement they do have. An unexplained gap in living together prompts a request for information. An explained one usually does not.

Social aspects

This aspect concerns whether the couple present to others as a couple, and whether the people around them recognise the relationship.

Strong social evidence includes joint invitations, travel taken together with itineraries and boarding passes, dated photographs across a range of occasions with a note of who is present and where, and evidence that family and friends treat the pair as a couple. Shared club memberships, joint attendance at events, and naming each other as an emergency contact also assist.

Witness statements are important here. A Form 888 witness statement from someone who names an event they attended with the couple, explains how they know them as a couple, and gives dates is far more persuasive than one that states only that the relationship is genuine. Two problems recur. The first is a set of undated, uncaptioned photographs that the decision-maker cannot place on a timeline. The second is several near-identical statements. Provide evidence that spans different periods and comes from people who know different parts of the couple’s life.

Nature of the commitment

This aspect concerns the depth and continuity of the relationship: how long the couple have been together, how well they know each other’s circumstances, and their intentions for a shared future.

The partners’ own statements do most of the work here. A detailed statement from each partner, describing how they met, how the relationship developed, the decisions they have made together, and any periods of separation and how they were managed, demonstrates commitment in a way that documents alone cannot. Evidence of regular contact during time apart is valuable, particularly where one partner has travelled or lived elsewhere during the relationship. Evidence of joint planning for the future, such as wills naming each other, superannuation beneficiary nominations and powers of attorney, shows that the partners regard the relationship as permanent. A shared child, as in 1824867, is powerful evidence under this heading, because it speaks directly to a permanent, mutual commitment.

Form 888 statements from two witnesses support the social aspect of the relationship and carry weight when they contain specific detail rather than general praise. They are separate from the statutory declarations Home Affairs requires at lodgement (at least two, each made within six weeks by an Australian citizen, permanent resident or eligible New Zealand citizen); a Form 888 does not satisfy that requirement. A statement that explains how the writer came to know the pair as a couple, with concrete examples, is worth far more than one that only asserts the relationship is genuine.

The 12-month rule for de facto applicants

A timing requirement applies to de facto applicants and is separate from the question of whether the relationship is genuine. In most cases, a de facto applicant must show that the relationship existed for at least 12 months immediately before the application was lodged. Married applicants are not subject to this requirement.

Limited exceptions apply. The most common is registering the relationship under a state or territory relationships register, which removes the 12-month requirement. Compelling and compassionate circumstances can also apply in a small number of cases. Anyone intending to rely on registration or another exception should obtain advice before lodging, because an error on this point can defeat an otherwise strong application for reasons unrelated to whether the relationship is genuine.

How to present the evidence

Presentation is part of the evidence. Organise the material under the four aspects, arrange the documents within each aspect in date order, and include a short relationship timeline that the decision-maker can check the documents against. Consistency across that timeline is important, because dates that contradict each other are a common reason for refusal.

Give priority to documents from independent, third-party sources over documents the couple have created themselves. A joint lease, a bank statement and a Form 888 witness statement each come from an independent source and are difficult to dispute. Aim for coverage rather than volume: a focused set that addresses all four aspects across the whole relationship is stronger than hundreds of pages concentrated in one aspect. Evidence weighted heavily toward the weeks before lodgement can appear arranged for the application, even when the relationship is genuine, so the file should span the full length of the relationship.

Common gaps that lead to a request or refusal

The problems we see most often are avoidable:

• Thin financial evidence: a single account, few transactions, or an account opened just before lodgement, with little to show pooled or day-to-day shared finances.
• Evidence concentrated on social photographs, with little on finances or the household.
• Joint accounts and leases opened immediately before lodgement, which suggest arrangements made for the visa rather than for the relationship.
• Statements that are brief, near-identical in wording, or silent about periods of separation.
• A relationship timeline that does not match the documents attached to it.
• A de facto applicant who has not met the 12-month requirement and has not evidenced an exception.

Any one of these can prompt a request for further information, and several together can support a refusal.

A request for further information should be used to address the specific point the decision-maker has raised, rather than to resubmit the same bundle. The request identifies the aspect the decision-maker found insufficient. If the application is refused, the applicant can ask the Administrative Review Tribunal to review the decision and decide it again on the facts, which is called merits review, and 1824867, decided by the ART’s predecessor the AAT, is an example of a refusal remitted on review. The better course is an application strong enough that it does not need review.

Have your evidence reviewed before you lodge

A partner visa succeeds on the strength and balance of its evidence across all four aspects of regulation 1.15A(3). If you are unsure whether your documents cover each aspect, whether your de facto relationship meets the 12-month requirement or qualifies for an exception, or how to explain a gap in your history, a review before lodgement is the most useful step you can take. Visa Plan Lawyers prepares and reviews Subclass 820/801 applications and can identify gaps while there is still time to address them. Read more on our partner visas page, then book a consultation to discuss your relationship evidence.

General information only, current at the date shown. It is not legal advice on your situation. To get advice on your matter, book a consultation.