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Partner Visa Lawyer

Australian citizens and permanent residents may sponsor their foreign partners for a permanent visa. This is usually a two (2) step process, consisting of a provisional visa, followed by a permanent visa, which may be granted no sooner than two (2) years from the date of the initial partner visa application.

The precise subclass of visa will depend on the location of the visa applicant when said application is lodged. Subclass 820 Visa is applied for from within Australia, whereas Subclass 309 Visa is applied from overseas. The permanent stage of the partner visa will also differ, with Subclass 820 transitioning to Subclass 801, and Subclass 309 to Subclass 100.

 

Direct Permanent Residency

In exceptional cases, a provisional visa may be bypassed and permanent residency may be granted directly if the relationship has produced a child, or has been ongoing for at least 3 years. Nevertheless, this is highly discretionary on the part of the Department of Home Affairs.

Proving the genuineness of a relationship for the purpose of an Australian Partner Visa requires a great volume of quality evidence, which is certainly not an easy exercise. Merely marrying or registering a de facto relationship will never be enough to satisfy the criteria enforced by the Department of Home Affairs for the visa grant.

 

Prospective Marriage Visa

Some applicants may consider a Subclass 300 Prospective Marriage Visa on the basis of their genuine intention to marry their fiancé or fiancée. Such applicants must apply from outside Australia. Upon grant, Subclass 300 Visa holders must enter Australia, marry their partner sponsor within nine (9) months of entry and proceed with an onshore Subclass 820 Visa application. For more information on Prospective Marriage Visas, see our Subclass 300 Prospective Marriage Visa page.

 

Partner Visa for a De Facto Couple

Applicants can be either a de facto partner or a married spouse of an Australian citizen or a permanent resident. Additionally, you must prove that your relationship is genuine and continuing with mutual commitment to a shared life as a couple to the exclusion of all others. In doing so, cohabitation is almost mandatory, and if you are physically living apart, you must demonstrate that the separation is merely temporary. The relevant factors include:

  • Social aspects, in how the couple appears to their friends, family and the world at large;
  • Financial aspects, in which the finances are maintained jointly;
  • Household aspects, which often include reasonable division of domestic chores; and
  • Mutual commitment to maintaining a joint life with one another.

If either party to the relationship has previously been married or in a de facto relationship, they should prove that the previous relationship has ended. This may be proven via a divorce certificate, in the case of a marriage, or a sworn statement, in the case of a de facto relationship.

 

No Family Relation

For the purpose of a partner visa, you cannot be related to your sponsor by blood. The rule of thumb is that you cannot marry an individual with whom you share a parent, whether biological or adoptive, or to whom you are linearly descended and vice versa.

 

Sponsor for an Australian Partner Visa

After lodging a provisional partner visa application, the sponsoring partner will generally be required to proceed with a separate sponsorship application. The partner sponsor assumes the responsibility of providing financial and accommodation assistance to the visa applicant during the two (2) years immediately following the provisional visa grant.

In most cases, the sponsorships are easily approved, there are, nevertheless, certain matters which may preclude an Australian citizen or a permanent resident from sponsoring their partner, such as:

  • If you have sponsored a foreign partner for a partner visa in the last five (5) years.
  • If you have sponsored two (2) foreign partners for partner visas.
  • If you are holding certain Contributory Parent Visas.
  • If you have an unresolved charge or conviction for a relevant offence.
  • If you have a significant criminal history in relation to relevant offences.
  • If you are holding one of the Woman at Risk Visas.

 

Partner Visa Sponsorship Limitation

The Migration Regulation states that the Minister must not approve the sponsorship unless the Minister is satisfied:

  • The sponsor has not sponsored more than 1 other person for a partner visa; and
  • In the case of a previous sponsorship, five (5) years have lapsed since the date of making the application for the previous partner visa.

This effectively means that any Australian citizen or permanent resident may sponsor only two (2) partners in their lifetimes, with each sponsorship being at least 5 years apart.

Nevertheless, by operation of subsection (2) of the Regulations, the disqualifications can be waived if compelling and compassionate circumstances exist in relation to the sponsor. Such waivers are not invoked lightly. Common grounds for waiver include where:

  • The sponsor was a victim of domestic violence in a prior relationship;
  • The applicant and sponsor have a dependent child together;
  • The previous partner has died;
  • The previous partner has abandoned the sponsor with a dependent child; Where the new relationship is long-standing.

 

Sponsor’s Character Issues

Under Regulation 1.20KC, the Minister must refuse a sponsorship by a sponsor who possesses a significant criminal record in relation to relevant offence as prescribed under regulation. The relevant offences include:

  • Violence against a person
  • Harassment, molestation, intimidation or stalking
  • Breach of an apprehended violence order, or a similar order, whether issued by an Australian jurisdiction or an overseas jurisdiction
  • Weapon offences
  • People smuggling
  • Human trafficking, kidnapping, unlawful confinement, slavery or like offences

Partner’s Criminal History

The above offences will arise regardless of the nature of one’s criminal liability. This means attempting to commit a relevant offence, or acting as an accomplice or accessory to a relevant offence, will both be considered commission of a relevant offence in the context of sponsorship. However, simply having been convicted of a relevant offence will not necessarily raise the possibility of sponsorship approval. In practice, the regulation is only enlivened where the sponsor has a “significant criminal history” in relation to the relevant offences.

One’s criminal history is deemed significant where the sponsor has been sentenced to a term of imprisonment of at least twelve (12) months or multiple terms of imprisonment totally in excess of twelve (12) months. It is noted that a drug rehabilitation or mental health residential program will be treated as imprisonment. Furthermore, where a sponsor is sentenced to periodic detention, the term of imprisonment will be the total time required to be spent in detention pursuant to said sentence.

 

Mitigating Circumstances for a Partner’s Criminal History

The Minister may elect to approve a sponsorship, notwithstanding a sponsor’s character issues with respect to the relevant offences. It can only occur where it is reasonable to disregard by reference to:

  • The time that has lapsed since the sponsor had completed the last relevant sentences;
  • Whether the approval of sponsorship is in the best interests of their child; and
  • Whether their relationship is longstanding.

 

Onshore Partner 820 Visa

820 Visa can be applied for whilst in Australia and a Bridging Visa will be issued upon its lodgement. If you hold a substantive visa at the time of your application, a Bridging Visa A will be issued, allowing you to switch to a Bridging Visa B to facilitate offshore travel. However, if you did not have a substantive visa at the time of application, a Bridging Visa C will alternatively be issued, where overseas travel is strictly limited.

 

 

Offshore Partner 309 Visa

309 Visa can be applied for whilst the applicant is overseas, meaning they are outside Australia. Whilst this application is being decided, the applicant may apply for a visitor visa on the ground of the pending 309 visa application and travel to Australia for purposes such as meeting your partner who is residing in Australia.

 

 

Partner Visa Guide

 

Can I sponsor someone that I met and am dating online?

Parties are strictly required to have met their partner in person before applying for a partner visa, whether the 820 Visa or 309 Visa. There are no exceptions to this rule. In all circumstances, parties are expected to have met in person prior to lodging their visa application.

This meeting must have occurred when both people were at least 18 years of age. The same rule applies when parties are married by proxy or looking to undertake an arranged marriage. There are, again, no exceptions to this requirement.

Our advice is that, if you have never met in person, you should consider temporary visa options to facilitate your first meeting. As at the time of writing, there is no way to facilitate a partner visa without first having been in the physical presence of your partner.

 

Does a Bridging Visa for the pending 820 Visa application give full working rights?

It depends on whether you held a substantive visa at the time of application. If the answer is yes, you will likely be issued a Bridging Visa A, on which you can work without restrictions. If not, you are not allowed to work unless an exemption is granted to your Bridging Visa C by the Department of Home Affairs.

Note that if you still hold a visa, your Bridging Visa A will be inactive until your current visa expires.

 

How long does it take for a Partner Visa to be issued?

Provisional partner visas may take up to 28 months for Subclass 820 and 22 months for Subclass 309. For up-to-date information, please refer to the Department’s website.

 

I am still married in the Philippines. Can I apply for a Partner Visa with my new Australian partner?

Under the Australian migration law, additional concessions exist for Filipino applicants as divorce is not permissible under the laws of the Philippines, and annulments are extremely limited in availability.

You will need to speak to our lawyers at Visa Plan to access the concession as this field is highly complex.

 

I currently do not have a visa. Can I apply for an 820 Visa?

Bridging visa holders and unlawful residents may apply for a partner visa, but only under extremely limited circumstances. Generally speaking, such applications can only succeed where compassionate and compelling grounds exist for the grant.

If you are unlawful or on a bridging visa, it is strongly advised that you seek professional assistance before proceeding with an expensive onshore 820 partner visa application.

 

I have previously been refused for a different visa. Can I apply for an 820 Visa?

If you have had a visa refused or cancelled whilst in Australia, you will be subject to a statutory bar, known as a “Section 48 Bar”, preventing lodgement of most other visa applications. Nevertheless, a partner visa is one of the few visas that can be validly applied for despite this bar.

Such an application can usually only succeed where compelling and compassionate circumstances exist. If you have had a visa refused or cancelled in Australia, we strongly recommend that you speak to a lawyer before parting from your Australian partner.

 

I became a victim of domestic violence when holding a Partner Visa. What can I do now?

If you or your child have been subject to family violence by your Australian partner, you do not need to remain with the perpetrator to gain permanent residency. Get out of the damaging relationship and speak to our lawyers now to secure your partner visa.

 

Does Australia recognize first cousin marriages?

The Australian marriage law prohibits marriage of a direct descendant to a direct ancestor, or between siblings. As such, marriages between mere cousins are acceptable for the purposes of a partner visa application.

However, it is crucial that both parties provide real consent to the marriage. Applications concerning marriages that have resulted from coercion will be refused.

 

 

Partner Visa Fees

Unlike other visas, both Provisional and Permanent Visas are applied simultaneously under the Partner Visa Program. The below charges are payable upon lodging a Provisional Visa application.

$8,085

  • Plus $4,0450 per additional applicant who is at least 18 years old.
  • Plus $2,025 per additional applicant who is younger than 18 years old.

 

 

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