Australian Partner Visa Summary
Partner visas allow married and de facto couples to live together in Australia where one is an eligible Australian partner, firstly on a temporary basis for 2 years then on a permanent basis if the relationship continues. Subclass 820/801 is when you lodge your application in Australia and Subclass 309/101 is when you are physically outside of Australia at the time you lodge the application. The Australian sponsor can be in or outside of Australia at the time of lodging any of the subclasses.
Who is eligible to apply for a Partner Visa?
This program applies to you if are in a relationship with an Australian citizen, permanent resident or an eligible New Zealand citizen. The relationship has to be genuine and ongoing to the exclusion of everyone else which can be proven based on the following four categories:
- The financial aspect of the relationship;
- The nature of the household;
- Social context of the relationship; and
- The nature of your commitment to each other.
Not every Australian can sponsor their partner. There are rules and limitations on sponsorships. If you have sponsored or have been sponsored on a Partner visa previously, make sure to seek legal advice before lodging another Partner visa application.
Evidence required for Partner Visa
1. Married Couples
The marriage has to be valid under the Australian law by meeting certain requirements such consent and age (exceptions apply). If you are in a same-sex marriage, your marriage is not recognised in Australia and you can apply as a de-facto couple.
If you are married, your marriage certificate will not be sufficient to prove your relationship with your partner. You have to prove that you are in fact in a genuine ongoing relationship with your Australian husband/wife covering the different aspects of the relationship as stated earlier.
2. De facto Relationships
You do not have to be married to apply for a partner visa. You can also be in a de facto relationship. A de facto relationship requires you to be living with your partner under the same roof in a genuine, ongoing relationship for at least 12 months. Alternatively, you can prove your de facto relationship if your relationship is registered with an Australian state government. The four aspects of the relationship will still need to be shown. Exceptions can apply to the 12 months rule.
Partner visa two stages- how long will your visa be valid for
Stage 1: Temporary visa- Subclass 820 or 309
You first get granted a temporary visa. If you are already in Australia, you might be eligible for Medicare and working rights. If you are outside of Australia, you can come and live in Australia on your partner visa once it is granted.
This visa is not a permanent visa. If the relationship breaks down during that period, your visa might be cancelled and you might have to depart Australia. Family violence is one example where you might be allowed to stay in Australia.
Stage 2: Permanent visa- Subclass 801 or 101
Two years after lodging the application, you can be eligible to apply for the permanent visa stage by providing supporting documents that your relationship is still ongoing with your Australian partner.
What is Schedule 3?
You can apply for a Partner visa in Australia (onshore) if you are in Australia. If you are on a bridging visa or have no visa when you apply, you will encounter what is called ‘Schedule 3’ complications. Schedule 3 allows you to lodge a valid Partner visa application in Australia however you have to prove that there are compassionate and compelling reasons to lodge your application in Australia, rather than going overseas to lodge it.
Schedule 3 is and has for long been a major hurdle for many couples. The Department of Immigration has been very strict lately when it comes to Schedule 3. The Department and the tribunals have until recently only considered compassionate and compelling reasons at the time the couple lodge their application. A recent Federal Court decision decided in March 2016, Waensila v Minister for Immigration and Border Protection  FCAFC 32, has reversed that rule and now all compelling reasons are considered up until the decision is made. This makes the prospects for success substantially better.
Partner visas can be complex especially if you are faced with Schedule 3. If you are impacted, we strongly recommend that you seek legal advice prior to applying to your application.
Partner visas refused
If you are in a genuine relationship with your partner and the Department of Immigration has refused your visa application, the decision is not final. The refusal can be taken on a review to a higher authority, the Administrative Appeals Tribunal, to be reassessed again. About 44% of cases of partner visa applications were successful at the tribunal in the last year.
Useful tips if you are interested in Partner visa
- Seek legal advice before lodging your application
- You can prove you are in a de facto relationship even if you have not lived together for 12 months if your relationship is registered with the Australian government.
- Processing time for this application is between 12 to 15 months however some visas can be decided outside of this range.
- You will need Australian witnesses to provide signed forms to attest to your relationship with your partner.
About the authors
This article was written by Marial Daniel, a solicitor and a registered migration agent (MARN: 1575322) of Teleo Immigration Specialists.
Teleo has successfully represented thousands of applicants over the past 10 years, including complex matters, visa cancellations and review applications.
The director of Teleo Immigration Specialists, Dr Etienne Hugo (MARN: 0004435) has over 17 years of Australian immigration experience and is one of only 35 accredited specialists immigration lawyers in New South Wales. Etienne is admitted as a lawyer in NSW and also the High Court of Australia. He was awarded both his BLC and LLB degrees with distinction and subsequently completed a LLD (Doctor of Law degree) from the University of Pretoria. He obtained his Immigration Law certification from UTS with distinction. Dr Hugo is a Fellow of the Migration Institute of Australia and regularly presents papers on Immigration Law. He has also taught at ANU in the graduate diploma for Immigration since 2006.
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