If you are in a de facto relationship with an Australian citizen or permanent resident, or an eligible New Zealand citizen, and you would like to settle in Australia permanently with your partner, you may consider applying for a Partner Visa. You can apply for a partner visa onshore (subclass 820/801 visa) or from outside Australia (subclass 309/100).
The de facto partner visa application involves a two-stage process, whereby you are first required to lodge a combined application for a temporary and permanent visa. If your application is successful, you will be granted a temporary visa in the first instance, which will allow you to reside in Australia temporarily whilst you await processing of your permanent residence visa application. Two years following lodgement of your partner visa application, the Department will commence processing your permanent residence visa application. You will be required to submit specified supporting evidence confirming that you remain in a de facto relationship with your Australian partner. If the outcome of your application is successful, you will be granted permanent residence in Australia. For certain de facto relationships, a permanent residence visa is granted at the first stage.
The partner visa class discussed above is also available to married couples. For applicants who are engaged to be married to their Australian partner, a Prospective Marriage subclass 300 visa is available, which too provides a pathway to permanent residence in Australia.
To qualify for a de facto partner visa in Australia, you will need to meet specified valid visa lodgement and grant criteria. One of the most important aspects of a partner visa application involves assessing whether your relationship meets the prescribed definition of a de facto relationship in accordance with the migration provisions. It is important to note that the meaning of a de facto relationship for this purpose will not necessary equate with the ordinary usage of this term or how it is defined in other laws or countries, for example. The bulk of your visa application will then essentially consist of providing specified information and documents in support of your claim that your relationship meets this definition. Qualifying for the permanent residence visa will also require you to continue to gather and compile evidence of your relationship throughout the application process (i.e. from temporary to permanent residence visa stage). Other criteria, such as health and character requirements, must also be met for a successful application.
Given the lengthy processing times currently being experienced in processing partner visa applications, you should be prepared for a relatively significant wait time until you reach the permanent residence grant stage (provided you satisfy all specified requirements). Based on current average processing times for de facto partner visa applications, you can expect to wait approximately 3-4 years for an onshore partner visa application (i.e. 45-50 months) and up to almost 5 years if lodged offshore (i.e. 43-57 months) (note that these processing times are subject to change).
It is also important to note that significant changes to how the partner visa application process operates are imminent, with the Government having recently passed a legislative bill which is currently awaiting royal assent and proclamation. This new law, once it comes into effect, will require sponsorship approval as a prerequisite for lodgement of a de facto partner visa application (whereas under the current system, sponsorship and visa approval occur concurrently). This means that visa applicants will no longer be able to determine the date when they can apply for a de facto partner visa (as it will depend on when the sponsorship is approved). How long this process will take is unknown and will therefore require careful planning of your de facto partner visa pathway. Given the added complexity involved in a de facto partner visa application as a result of these changes, having the right information is now even more crucial to maximise your chances of a successful outcome and to avoid a potential refusal. We therefore highly recommend that you seek professional immigration advice.
It is also important to point out that these types of partner visa applications are often not a simple and straight-forward process. They can involve quite complex issues and also require you to provide detailed and comprehensive personal information and documents to prove that you qualify for a partner visa (including from third parties such as friends and family). This can be confronting for many people, especially having to ‘prove’ to the Department that your relationship is genuine. Being prepared for this upfront can help to make the process easier as you will know what to expect. This article aims to help by providing an overview of the eligibility requirements that you will need to meet to qualify for grant of a de facto partner visa in Australia. Being armed with the right information is key to a successful application.
What are the visa options available to de facto partner visa applicants?
The de facto partner visa class consists of the following two options:
Partner – Subclass 820/801 visa
You must be located in Australia at time of lodgement of the Subclass 820 partner visa /Subclass 801 partner visa application and the application must be lodged online. You are also required to be onshore at the time of grant of the temporary subclass 820 visa.
You may be located either in Australia or offshore for grant of the permanent subclass 801 visa.
Partner – Subclass 309/100 visa
The Subclass 309 partner visa /Subclass 100 partner visa partner visa application is an offshore application to be lodged online. You must also be outside Australia for the temporary subclass 309 visa to be granted.
You may be located either in Australia or offshore for grant of the permanent subclass 100 visa.
If you have been in a de facto relationship with your Australian partner for at least 3 years (or 2 years where there is a dependent child of the relationship), the process will be quicker as you will be granted a permanent residence visa at the first stage (i.e. you essentially ‘skip’ the temporary visa step and progress straight through to permanent residence).
What are the requirements to qualify for grant of a de facto partner visa in Australia?
The following key criterion must be satisfied to qualify for visa grant:
- Both you and your partner must be at least 18 years of age;
- You must be in a de-facto relationship with an Australian citizen or permanent resident, or an eligible New Zealand citizen;
- You must be sponsored by your partner (be aware that certain individuals are prohibited from being approved as a sponsor);
- Your partner must meet a character requirement (this will require that they provide specified police checks as part of the application); and
- You must also meet health and character requirements.
If you are applying onshore (subclass 820/801) and you do not hold a substantive visa at the time of application lodgement, you must also satisfy Schedule 3 criteria.
What is the meaning of a de facto relationship?
The migration provisions define a de facto relationship as one where all the following elements exist:
- You and your partner have a mutual commitment to a shared life to the exclusion of all others;
- Your relationship is genuine and continuing relationship;
- You and your partner live together, or you do not live separately and apart on a permanent basis; and
- You and your partner are not related by family.
The above definition is one of the most critical aspects of your de facto partner visa application as it forms the primary basis for determining whether you are eligible for grant of a de facto partner visa. Preparing your application for lodgement essentially involves gathering supporting evidence to address specific aspects of this definition, to confirm to Immigration that you are eligible for a partner visa.
As a de facto couple, you must also meet additional requirements for grant of a de facto partner visa (which do not apply to married couples).
How do you prove to the Department that you meet the definition of a de facto relationship?
In assessing whether your de-facto relationship meets the prescribed definition above, the Department will examine the following aspects of your relationship:
- Financial – joint ownership of major assets, joint liabilities, pooling of your financial assets, etc.
- Social – is your relationship recognised by others as being genuine, do you jointly take part in social events and travel/other activities, etc.
- Household – your living arrangements, household duties (e.g. cooking, cleaning, etc.), and providing care and support for children, etc.
- Nature of your commitment – the length/history of your relationship, do you intend to be in a committed, long-term and exclusive de-facto relationship, how have you maintained contact for any periods spent living apart.
You must ensure that you provide supporting documentary evidence with your application addressing each of the above four aspects of your relationship. If you are unable to provide evidence to address any one of these elements, provide appropriate explanations and/or documents to explain why this is the case. The Department recognises that each relationship is different and that there will be cases where not all of these relationship aspects will be present (for example, you may not be living together due to religious or cultural reasons, or due to work commitments). Immigration will consider your individual circumstances when deciding your application, and it is therefore crucial that you provide all relevant documents at time of lodgement. If there are gaps in information and/or documents which you supply, the Department has no obligation to follow this up with you. It can automatically proceed to refuse your application.
To make your application as strong as possible, it can also help to be aware of what Immigration case officers look for in partner visa applications in terms of potential risk factors, as these may result in more scrutiny being applied in deciding individual partner visa applications, and consequently, result in potential processing delays and/or refusal of an application. The most common reasons for partner visa applications being refused is also a valuable piece of information to be aware of, as it allows you to better prepare your application, addressing any potential risk areas, and to anticipate issues arising.
We have also prepared a detailed guide on de facto visa applications which further discusses the eligibility criteria to meet the partner visa grant requirements.
In conclusion, we note that the above discussion provides an overview of the eligibility requirements that you will need to meet to qualify for grant of a de facto partner visa in Australia. Australia’s migrations laws are complex, and each case is different. We have also referred to several terms which are defined in the migration provisions (and whose meanings may differ from their ordinary usage). We recommend that you seek professional advice before you proceed with applying for any visa class, as being fully informed about the process and requirements that apply will give you the best chance of achieving a successful outcome on your application, and thus lessen the chance that it will be refused. A migration professional can help you to do this.
For up to date advice on the de facto partner visa process and eligibility requirements, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading migration agent based in Adelaide.