Did you know that if you are in a de facto relationship with an Australian citizen or permanent resident, or an eligible New Zealand citizen, you may be eligible to apply for a de facto visa?
If you are seeking permanent residence in Australia, you may consider whether you qualify for one of the following partner visas:
- Subclass 820/801 Partner Visa (onshore application)
- Subclass 309/100 Partner Visa (offshore application)
Both the onshore and offshore partner visas comprise a two-stage process, beginning with an assessment of your eligibility for a provisional visa (this type of visa provides a pathway to permanent residence provided that certain requirements are met). Then, two years post-lodgement, you will be assessed for a permanent residence de facto visa in Australia.
These visa subclasses are identical in all respects but for one important difference, being the visa applicant’s location at visa lodgement and grant date. In this regard, they differ in the following ways:
Subclass 820/801 Partner Visa
The combined subclass 820/801 partner visa application must be lodged in Australia. You must also be onshore at the time of grant of the temporary subclass 820 visa.
For grant of the permanent subclass 801 visa, you may be located either onshore or outside Australia.
Subclass 309/100 Partner Visa
The combined subclass 309/100 partner visa application must be lodged outside Australia. You must also be offshore at the time of grant of the temporary subclass 309 visa.
For grant of the permanent subclass 100 visa, you may be located either onshore or outside Australia.
Onshore Visa Grant Due To COVID-19 Travel Restrictions
An exemption has be introduced to allow for the onshore grant of the Subclass 309 Partner visa for applicants who are in Australia and are not able to travel offshore to be granted their visa due to COVID-19 travel restrictions.
This temporary change to the visa grant requirements commenced on 27 February 2021.
This means that If you applied for a Partner visa outside Australia before the end of the COVID-19 concession period, but you are in Australia during this period, you can be granted the visa onshore if you meet all other visa requirements.
Applicants who is outside Australia and who meets the normal visa grant requirements will be able to be granted the visa offshore, in accordance with the current process.
The COVID-19 concession period commenced on 1 February 2020 and is a temporary arrangement. An end date is yet to be announced.
Applicants who come to Australia after the end of the COVID-19 concession period will not be able to be granted their visa whilst they are onshore, in line with the usual requirements.
Get More Information About The Partner Visa
We have prepared detailed information about each of these visa subclasses, where you can learn about specific eligibility requirements, costs, timing, how to apply for a de facto visa, documents required and more. We provide the following links for your reference.
We have also developed a partner visa assessment calculator to help you to assess your eligibility for a de facto relationship application.
How Do You Apply For A De Facto Visa?
The de facto visa application comprises a 2-stage process, as detailed in the table below:
|
Subclass 820/801 visa |
Subclass 309/100 visa |
|
|
Step 1 |
Lodge a combined de facto application for a:
You will first be assessed for the subclass 820 visa. If granted, you may continue to reside in Australia whilst Immigration processes your de facto visa application for permanent residence. |
Lodge a combined de facto application for a:
You will first be assessed for the subclass 309 visa. If granted, you may enter and reside in Australia whilst Immigration processes your de facto visa application for permanent residence. |
|
Step 2 |
Once 2 years have passed since you lodged your combined subclass 820/801 partner visa application, you will be assessed for the subclass 801 visa. If your application is successful, you will be granted permanent residence in Australia. |
Once 2 years have passed since you lodged your combined subclass 309/100 partner visa application, you will be assessed for the subclass 100 visa. If your application is successful, you will be granted permanent residence in Australia. |
Note that the above de facto relationship application process will be condensed into a single step if you have been in a long-term relationship with your Australian de facto partner. This means that you will be granted a permanent residence visa at step 1 (when Immigration first assesses your combined application).
What Is A Long-Term Relationship?
A long-term relationship is one which has been in existence for a minimum period of:
- 3 years; or
- 2 years if there is a dependent child of the relationship.
Eligibility Criteria For A De Facto Visa
The first step in the visa assessment process for a de facto application is to determine whether you satisfy visa grant requirements for a partner visa. These requirements are detailed below.
- You 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;
- Your partner must sponsor you for the visa (note that certain persons are prohibited from being a sponsor);
- Your sponsoring partner must be at least 18 years of age;
- Your sponsoring partner must satisfy a ‘character’ requirement (relevant police clearance/s must be provided); and
- You must satisfy character and health criteria.
If you lodge your de facto relationship application onshore, in addition to the above, you must also hold a substantive visa (which is any visa excluding a bridging visa, criminal justice or enforcement visa) at time of lodgement. Otherwise, you must satisfy additional Schedule 3 criteria.
What Is A De Facto Relationship?
One key component of the above eligibility criteria is to determine whether your relationship with your Australian sponsoring partner is a ‘de-facto relationship’ in accordance with the migration provisions. It is very important that you check this definition before you lodge your application as its meaning may differ from its ordinary usage.
To satisfy the definition of a ‘de facto spouse relationship,’ the following requirements must be satisfied:
- You and your sponsoring partner are not in a married relationship (in accordance with the migration provisions);
- You and your sponsoring partner must have a mutual commitment to a shared life to the exclusion of all others;
- Your relationship with your sponsoring partner must be genuine and continuing;
- You must either live together, or not live separately and apart on a permanent basis, with your sponsoring partner; and
- You and your sponsoring partner must not be related by family.
In addition to the above, you must also provide evidence to demonstrate that your de facto relationship has been in existence for at least 12 months immediately before lodgement of your application.
There are exceptions to this minimum relationship requirement period, which are as follows:
- You must demonstrate that there are compelling and compassionate circumstances to grant the visa;
- Your sponsoring partner currently holds (or has previously held) a permanent humanitarian visa, and they must have declared your de facto relationship to the Department prior to the grant of the humanitarian visa;
- Your sponsoring partner has lodged an application for a permanent humanitarian visa; or
- You have registered your relationship with an Australian State/Territory Government.
What Are Compelling And Compassionate Circumstances?
The ‘compelling and compassionate’ criterion is a ‘high threshold’ test and generally requires the existence of special circumstances that are compelling in nature for it to be met. As the migration provisions do not prescribe when such circumstances are taken to exist, they take their ordinary dictionary meaning for this purpose.
Under Immigration policy, ‘compelling and compassionate’ circumstances may exist where:
- there is a dependent child of the relationship; or
- it is illegal for you to live with your partner in a de facto relationship in your home country.
Note these guidelines are not legally binding on the Department but are still useful to determine how it is likely to interpret and apply this provision in deciding applications. Therefore, there may be other reasons deemed acceptable by Immigration for the purposes of satisfying ‘compelling and compassionate’ and each case will be judged individually.
To determine whether your de-facto relationship meets the relevant definition as outlined above, the Department will examine the following aspects of your relationship:
Financial
Relevant factors include joint ownership of major assets, assuming joint liabilities and combining your financial assets
Social
Relevant factors include whether your relationship is recognised by others as being genuine (e.g. in the eyes of family and friends) and whether you engage jointly in social events and travel/other activities, etc.
Household
Relevant factors include your living arrangements, how you organise household duties (e.g. cooking, cleaning, etc.), your day-to-day lives as a de facto couple and the provision of care and support for children
Nature Of Your Commitment To One Another
Relevant factors include the length and history of your relationship, whether you intend to be in a committed, long-term and exclusive de-facto relationship and how you maintained contact for any periods when you lived apart.
In assessing your de facto relationship, the Department will consider the evidence which you provide for each of the above four aspects, together with the individual circumstances of your relationship. Although legally, these aspects do not each have to be met for a de facto relationship to exist, they are nevertheless the key areas of interest that the Department will focus on as it makes its assessment. Overall, and in light of all the information and evidence supplied as part of your application, the question is whether your relationship is a genuine, committed, long-term and exclusive de-facto relationship in accordance with the migration provisions.
You should provide evidence addressing each of the above relationship aspects for the duration of your de facto relationship at the time of lodgement of your application. If you are unable to provide any, or minimal, evidence for any of these aspects, you should explain why this is the case and supply accompanying supporting evidence, if applicable.
The Department recognises that each relationship is different and cannot, therefore, be assessed using a ‘one-size-fits-all’ approach. Factors such as religious beliefs and traditions, work and family commitments, etc. can all have an impact on relationships. But, Immigration can only assess your de facto relationship with these matters in mind if you provide relevant information, explanations and evidence. If you fail to do so, the Department will simply apply the above definition and relationship aspects and assess on that basis.
As an example, if you and your sponsoring partner have not lived together for the entire duration of your de facto relationship due to work commitments and you do not provide appropriate explanations and supporting evidence in this regard, the Department may determine that you fail to satisfy the following requirement (see definition of de facto relationship as outlined above):
‘You must either live together or not live separately and apart on a permanent basis with your sponsoring partner.’
In such a case, provided that these living arrangements are only temporary, and you have lived together since the commencement of your de facto relationship, you may still satisfy the relevant definition. The evidence that you supply is therefore crucial to the ultimate outcome of your application.
Note also that Immigration has no obligation to follow-up with you after you have lodged your application to clarify information or to request further evidence. It can simply proceed to decide your application based on the documents provided at the time of lodgement. It is therefore vital that you provide strong supporting evidence when you lodge your application. Do not wait to be asked. Otherwise, you risk further processing delays or a potential refusal of your application (and the added complications that would likely come with that outcome).
Registered Relationship
As noted earlier in this article, you will be exempt from the minimum 12-month relationship period If you register your de-facto relationship with a State or Territory Government in Australia, such as South Australia. Despite this, it is important to be aware that if your de facto relationship has existed for less than 12 months, or you supply evidence covering less than this period, your application will likely face a higher level of scrutiny by the Department in assessing the genuineness of your relationship. It can also be more difficult to build a sufficient amount of evidence in a short period of time. The longer the duration of your de-facto relationship, the more evidence you are likely to develop, which is likely to be advantageous to your application. It can mean less scrutiny and questions being asked by the Department, fewer chances of additional processing delays, and more likely a successful result (provided all other visa grant requirements are satisfied).
The above discussion illustrates the importance of the timing of lodgement of your application, and how this can impact on the overall outcome. It is an important factor for you to consider as you assess your own visa pathway and the right time to lodge, with a key question being whether you can supply a good amount of evidence as proof that your de facto relationship is genuine, based on the above definition and relationship aspects.
How Can You Build Up Sufficient Relationship Evidence?
You might be wondering how can you develop a good amount of evidence to demonstrate that you have a genuine de facto relationship with your sponsoring partner? This can be difficult in certain circumstances where visa and residence rights issues arise. Potential options might be living together with your sponsoring partner in your home country, or in another country. Or, you could consider applying for a visa which will allow you to temporarily reside in Australia with your partner, and thus allow you to build up evidence of your de facto relationship. But which visa do you apply for?
Under Australia’s migration programme, each visa is designed to suit a specific purpose, and must not be used to achieve visa outcomes that are inconsistent with these stated aims (as reflected in visa lodgement/grant requirements). There are a wide range of options available including visitor, study, skilled and business visas, and it is important that you apply for the right one to avoid serious issues arising that can impact on future applications that you seek to lodge with the Department (a possible consequence is the imposition of a 3-year exclusion period for any future applications).
As a result, you should not apply for a Student Visa, for example, unless you have a genuine intention to study a selected course in Australia for a temporary period only (this is referred to as the Genuine Temporary Entrant (GTE) requirement). It would not be appropriate, therefore, for you to apply for a Student Visa if your purpose is to reside with your Australian partner and to build evidence of your relationship, rather than for the purpose of the study.
Having said that, it would be acceptable for you to apply for a new Student Visa (or extend your existing one) if your purpose is to study in Australia for a temporary period, and at the same time, you decide to live with your partner. Where or with whom you live whilst a student visa holder is not relevant to the Department for Student Visa purposes.
A Visitor visa is likely to be a good option for this purpose as it would allow you to visit your Australian partner for a specified temporary period (normally for between 3 and 12 months) as a visitor. Before you apply for a Visitor Visa, you would need to ensure that that you genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted, being to visit a family member who is an Australian citizen or permanent resident (note there is a specified list of people who fall within this category), or for any purpose other than for business or medical treatment.
The Department deems it to be acceptable to apply for a visitor visa to be with your Australian partner and to maintain an established relationship. Therefore, you will not be disadvantaged in your visitor visa application if your purpose is to continue a relationship with your Australian partner.
One other aspect to keep in mind is that once you are in Australia as the holder of another visa (e.g. a visitor visa), you may then consider applying for the partner visa onshore (by lodging a combined subclass 820/801 vis application). Note, however, that this may not be possible if your visitor visa is subject to a ‘No Further Stay’ condition (this will appear as condition 8503 in your visa grant notification).
If condition 8503 applies to you, then you will be prevented from being granted a partner visa in Australia (unless you apply successfully to the Department to have this condition waived). In such a case, you would need to depart Australia and apply for a partner visa offshore.
Who Can You Turn To For Help With Your De Facto Application?
Applying for a de facto visa can often be one of the most complex types of visas in Australia. It is vital that you have a complete and up-to-date understanding of the migration provisions as they apply to your particular situation, and how to demonstrate to the Department that you meet each applicable requirement. This can be more challenging for a de facto visa, given that each relationship is unique. There is no ‘one size fits all’ relationship, which, from the Department’s point of view, is entirely acceptable, even expected, and even more so when you consider that different countries, cultures, religions and the like each adopt their own traditions and accepted standards for relationships. There can also be changes to living arrangements of a de facto couple due to work commitments, for example. Although these types of variations may depart somewhat from the standard vanilla-type relationship normally seen in Australia more generally, this does not mean they would not be accepted as meeting the partner visa requirements.
The key aspect in maximising your chances of being granted a de facto visa is to provide detailed, comprehensive documentary evidence as part of your de facto visa application, to show to the Department how you meet the requirements. And if particular circumstances apply, explain them. The worst thing you could do is simply ignore a requirement because it doesn’t ‘fit with your relationship.’ Doing so means you risk having your application be refused.
It is also important to be mindful that careful planning is required. Although it is always the case that you need to have a good understanding of the laws and regulations, you also need to anticipate any potential changes that could be coming.
The team of professionals at PAX Migration Australia have the knowledge, skills and qualifications to advise you on your options, and formulate a partner visa pathway to help you to achieve your migration goals in Australia.
As part of the service, your registered migration agent will provide you with tailored advice that is prepared specifically for you, based on your individual situation, your goals and needs. Contact PAX Migration Australia to explore your options for a partner visa today, and avoid being caught out by changes that could be implemented at any time.
Why Choose PAX Migration Australia?
To learn more about why you should consider speaking with PAX Migration Australia, reviews and testimonials from our clients about what they think about us, and why obtaining professional assistance and advice from a migration agent can be beneficial in achieving a positive outcome on your migration matter, please refer to the following articles:
Selecting a migration agent in Australia
Should I use a migration agent or immigration lawyer for my application?
Migration Agent Aberfoyle Park
For more information on what you can expect from PAX Migration Australia when you engage our services, including the process involved, please refer to the following articles:
Migration Agent Kensington Park
To find out if you are eligible, contact us on 08 7226 2225 or mail@paxmigration.com.au and book a consultation for personal advice specific to your circumstances.
Get More Information About The De Facto Visa
We have prepared a series of articles to provide further information about the de facto relationship visa program and how it works. We recommend you refer to the links below for more information.
Partner Visa Sponsor Requirements
What are the requirements for a spouse visa in Australia
Top 5 reasons why partner visas are refused
How to be approved as a partner visa sponsor?
Bridging visas for partner visa applicants
What evidence should I provide?
What case officers look for in a partner visa application?
Overview – Partner Visa Australia
Are you eligible to apply for a de facto partner visa in Australia
Overview of Onshore Australian Partner Visa Schedule 3
Why partner visa applications are so tough
A Detailed Guide on De Facto Visa Application
Register your de facto relationship in South Australia
We also recommend that you refer to our articles on articles on the Partner Visa Changes and Australia Partner Visa Changes for a discussion of changes that have been proposed to partner visas, which could have very significant ramifications for potential visa applicants. This demonstrates the importance of being fully equipped with the latest information, combined with extensive experience in migration law, to give yourself the best chance of achieving a successful outcome on your application.
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The purpose of this article is to provide a general overview of the eligibility criteria for a de facto relationship to meet the partner visa grant requirements. It focuses on the more common scenarios that normally arise from de facto relationships and therefore does not cover all possible options/scenarios. It is also beyond the scope of this discussion to provide a detailed description of all applicable factors you will need to consider. We therefore strongly recommend if you are considering applying for a de facto visa, that you make the proper further enquiries to ensure that you are fully informed about your eligibility, the application process and the documentary evidence requirements that apply before you lodge your application. This will give you the best chance of a successful outcome and potentially avoid unnecessary processing delays or a potential visa refusal. Getting it right the first time also means you avoid the loss of valuable time and money that comes with a visa refusal decision.
For up to date advice on the de facto visa application, including an assessment of your eligibility for visa grant, the process for applying and advice about the requirements that apply to a de facto relationship, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.
Sources/Links
Australian Government – The Hon Alan Tudge MP – Former Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs – Media release – Monday, 30 November 2020 – Further changes to support Family visa applicants
