Are you thinking about applying for a Partner visa to Australia? You may have heard about various types of partner visas and are wondering what the differences between them are? More specifically, how does a permanent partner visa differ from a provisional partner visa? In this article, we discuss the various partner visa options that are available and examine their differences and similarities.
But before we delve into the partner visa options, let us first take a look at the differences between a provisional and permanent visa.
What Is The Difference Between A Permanent And Provisional Visa?
Permanent Visa
A permanent visa allows the visa holder to remain in Australia indefinitely. Australian permanent residents can broadly:
- work and study in Australia;
- enrol in Medicare, Australia’s national health care program;
- apply for bank loans to buy property;
- sponsor eligible relatives for permanent residence;
- apply for Australian citizenship (if eligible)
- travel to and from Australia for the term of your travel facility (this will generally be for five years); and
- attend free English language classes provided by the Adult Migrant English Program.
As an Australian permanent resident, you may also qualify for other government benefits and services. If you hold a permanent visa but are not residing in Australia, your eligibility for the above may be affected.
How Is A Permanent Resident Different to An Australian Citizen?
A permanent resident of Australia does not have the same rights as a citizen of Australia. What can an Australian citizen do that a permanent resident can’t? A citizen can:
- hold an Australian passport;
- cast a vote in Australian Government elections;
- access student loans;
- join the Australian Defence Force;
- obtain ongoing work in the Australian Government; and
- return to Australia from overseas without a valid travel facility (you do not have an automatic right of entry to Australia as a permanent resident. Your right of re-entry to Australia will depend on the validity of your travel facility on your permanent visa).
Travel Rights As A Permanent Resident
Upon the grant of a permanent residence visa, you will generally have a five-year travel facility on your visa. This means that you can leave and re-enter Australia as many times as you like in the five year period from the date that your permanent visa is granted (whilst your visa remains valid).
Once your travel facility expires, you will need to apply for and be granted either:
- a Resident Return visa (if you wish to re-enter Australia as a permanent resident); or
- Australian citizenship (if you wish to travel as an Australian citizen).
How Can You Become An Australian Permanent Resident?
There are several visa options which allow you to qualify for permanent residency in Australia. Some visas to Australia grant you immediate permanent residence. Examples include a Subclass 189 Skiled Independent visa and a Subclass 190 Skilled Nominated visa, both of which grant you automatic permanent residence in Australia on the basis of your skills.
Other visas provide a pathway to permanent residence after a certain period, by first granting you a provisional visa. After a specified period, a permanent visa is granted provided you meet specified requirements at that time. A partner visa is an example of this.
Provisional Visa
A provisional visa is a temporary visa which may lead to the grant of a permanent visa if the holder meets certain conditions. A provisional visa is essentially a temporary visa that provides a permanent pathway. You may be able to apply for the permanent visa related to the provisional visa.
An example of a provisional visa is the Subclass 820 Partner visa, which is granted to eligible applicants who are seeking permanent residence in Australia on the basis of their relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen. The provisional visa will lead to the grant of a permanent Subclass 801 Partner Visa, subject to prescribed requirements being met at a future date. The subclass 820 visa is an onshore visa, which means that the visa applicant must apply for this visa in Australia. You must also be onshore for the visa to be granted.
Similarly, the Subclass 309 Partner visa is another example of a provisional visa. This visa subclass is the offshore equivalent of the subclass 820 visa discussed above, with the difference being that it must be lodged whilst the visa applicant is outside Australia. It can also only be granted provided the applicant is offshore. The provisional visa will lead to the grant of a permanent Subclass 100 Partner Visa, subject to prescribed requirements being met at a future date.
Temporary Visa
Before we continue our discussion, let us touch on temporary visas. This type of visa allows you to reside in Australia for a temporary period. You may also be subject to specified visa conditions as a temporary visa holder. An example of a temporary visa is a Subclass 482 Temporary Skill Shortage (TSS) visa. This visa enables an employer to sponsor a suitably skilled worker to fill a position in their business which they cannot source from the Australian labour market. In this case, you must only perform certain type of work for a specified employer. Therefore, as a TSS holder, you are subject to a series of limitations on your rights in Australia. At the end of the visa term, you must either depart Australia, or apply for and be granted a further visa to remain in Australia. Note that a TSS visa may also provide a pathway to permanent residency if certain requirements are met.
Partner Visa
Australia’s partner visa program is characterised by a two-stage processing arrangement whereby applicants lodge a combined application for a provisional and permanent partner visa as a first step. If the application is sucessful, the applicant is granted an initial provisional partner visa (being either the subclass 820 or 309 partner visa, depending on whether it is lodged onshore or outside Australia).
At the second stage of the partner visa application process, which occurs two years after lodgement of the combined application, the Department of Home Affairs (the Department) assesses whether the applicant meets the requirements for grant of the permanent partner visa. If the application is sucessful at this stage, the applicant becomes a permanent resident of Australia, either through the grant of a subclass 801 (onshore) partner visa, or a subclass 100 (offshore) partner visa.
Does The Two-Year Wait Period Always Apply?
The answer is no, not always. In certain specified circumstances, a partner visa applicant may become eligible for the permanent residence partner visa at the same time as the provisional partner visa is granted (i.e. they in effect ‘skip’ the two-year wait period, with the provisional and permanent residence partner visas being granted at the same time, that is, at stage one of the application process).
When Does The Two-Year Wait Period Not Apply?
Long-Term Relationship
The two-year wait period does not apply if, at the time the visa application is made, the visa applicant and their partner are in a long-term partner relationship. In this situation, immediately after granting the provisional partner visa, the Department will assess the applicant’s permanent partner application and, if visa grant criteria are satisfied, a permanent visa will be granted.
A long-term partner relationship is one that has continued for no less than two years if there is a dependent child (other than a step-child) of both the applicant and their Australian partner. In any other case, a long-term partner relationship is one that has continued for no less than three years.
Other Circumstances
Following grant of the provisional partner visa, the Department may grant the permanent partner visa at any time in the two-year period in the following circumstances:
- the Australian partner has died since the applicant was granted the provisional partner visa;
- family violence has occured; or
- the applicant is given custody or access rights over a child for whom the Australian partner has custody/access rights and/or maintenance obligations.
Lets now explore the onshore and offshore partner visa options, and the differences between them.
Onshore Partner Visa
The subclass 820 visa is designed for applicants who are married to, or are in a de-facto relationship with, an Australian citizen or permanent resident, or an eligible New Zealand citizen. It requires that your Australian partner sponsor you for the visa. If your application is successful, it will allow you to reside temporarily in Australia with your Australian partner at stage one of the process.
You will automatically be granted a bridging visa which will allow you to lawfully reside in Australia whilst you await a decision on your subclass 820 visa application. A bridging visa is designed to ‘bridge the gap’ between one visa to the next so that you remain a lawful non-citizen during the application processing time.
Once two years have passed since you lodged your application, you will be required to submit evidence to Immigration to confirm that you continue to meet the visa grant requirements. A key aspect of this will be whether you remain in a married or de-facto relationship with your Australian partner, which is the central aspect of a partner visa. Provided your application is sucessful at this second stage of the application process, you will be granted a permanent residence partner visa.
Note that you can include eligible dependent family members in your application. To be eligible, they must meet health and character criteria. They must also be onshore at time of application and grant of the provisional resident 820 visa and the permanent subclass 801 visa.
What Can You Do As An Onshore Provisional Partner Visa Holder?
As the holder of provisional subclass 820 visa, you are permitted to temproarily reside in Australia whilst you await processing of the second stage of your application, that it, the permanent subclass 801 partner visa. You can work and study in Australia, as well as travel to and from the country on an unrestricted basis for the term of the subclass 820 visa. You can also attend free English language classes provided by the Adult Migrant English Program, as well access Medicare.
Note that you can enrol in Medicare from the date you apply for the subclass 820/801 visa.
What Is The Cost To Apply For An Onshore Partner Visa?
The Visa Application Charge (VAC) for the most common scenario in this case is currently set at $8,085 for the primary applicant.
Prospective Marriage Visa
Before we turn our attention to the offshore partner visa, let us first explain how the Subclass 300 Prospective Marriage Visa comes into play when discussing the subclass 820/801 partner visa.
The subclass 300 visa enables you to come to Australia to marry your prospective spouse and then to apply for an onshore partner visa. In this case, prospective marriage visa applicants face a three-stage application process, as follows:
- Step 1 – You first need to lodge a subclass 300 Prospective marriage visa application, which, if granted, will allow you to travel to and reside in Australia for a period of up to 9 months (unless the Minister prescribes a specific date, which may be between 9 and 15 months from the visa grant date) to marry your Australian partner;
- Step 2: Once you have married your partner (within the 9-month visa period, unless the Minister prescribes a specific date, which may be between 9 and 15 months from the visa grant date), you are then expected to lodge a combined application for an onshore partner subclass 820/801 visa; and
- Step 3: Two years following lodgement of your combined subclass 820/801 visa application, the Department will assess whether you continue to satisfy the requirements for a grant of the subclass 801 visa, with a successful application resulting in the grant of permanent residency in Australia.
Offshore Partner Visa
If you are married to, or you are in a de-facto relationship with, an Australian citizen or permanent resident, or an eligible New Zealand citizen, and you are located offshore, you may consider applying for a partner visa 309 as a potential pathway to permanent residence in Australia.
Like the subclass 820 visa discussed above, the offshore partner visa application involves a two-step process, whereby you are required to lodge a combined application for a provisional visa (subclass 309) and a permanent visa (subclass 100 visa) at the same time. You will first be assessed for the provisional subclass 309 visa and, if granted, it will allow you to enter and reside in Australia whilst Immigration processes your application for permanent residence.
The combined subclass 309/100 application must be lodged from offshore, and you must also be outside Australia at the time of grant of the temporary visa. For grant of the subclass 100 visa, you can be located either in or outside Australia.
Two years following lodgement of your 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 as part of its assessment of your subclass 100 visa application, Immigration will confirm whether you continue to meet the visa grant requirements for the partner visa. A key aspect of this assessment is whether you remain in a married or de-facto relationship with your Australian partner.
Note that you can include eligible dependent family members in your application. To be eligible, they must meet health and character criteria. They must also be offshore at time of application and grant of the provisional visa 309. For grant of the subclass 100 permanent residency visa, they may be loctaed onshore or outside Australia.
What Is The Cost To Apply For An Offshore Partner Visa?
The VAC for the most common scenario in this case is currently set at $8,085 for the primary applicant.
What Can You Do As An Offshore Provisional Partner Visa Holder?
As the holder of provisional subclass 309 visa, you are permitted to temporarily reside in Australia whilst you await processing of the second stage of your application, that it, the permanent subclass 100 partner visa. You can work and study in Australia, as well as travel to and from the country on an unrestricted basis for the term of the subclass 820 visa. You can also attend free English language classes provided by the Adult Migrant English Program, as well access Medicare.
Note that you can enrol in Medicare on the date of your arrival in Australia (that is, once the provisional visa 309 is granted).
Similarities … And Differences So Far
So, as you can see so far in our discussion, the provisional resident 820 visa and provisional visa 309 are very similar in terms of the application process, that is, both involve a two-stage process (except where specified requirements are met, in which case this is reduced to a single stage). Both are also ‘provisional partner visas, meaning they each provide a pathway to permanent residency provided prescribed criteria are met two years post-lodgement of the combined subclass 820/801 or 309/100 visa application.
A key difference? The subclass 820/801 application must be lodged onshore, with a bridging visa granted to enable the applicant to reside in Australia as they await processing of the provisional resident 820 visa application. Contrast this with the subclass 309/100 application, which must be lodged when the applicant is outside Australia (and for which no bridging visa is granted).
The offshore partner visa is also not a feature of the subclass 300 Prospective Marriage visa process, unlike the onshore partner visa, which is relevant to prospective marriage visa holders (as discussed above).
The cost to apply for an onshore and offshore application are the same in the most common scenario (note the migration provisions outline a series of different circumstances and the VAC that applies in each case).
Once the provisional resident 820 visa is granted, you may reside temporarily in Australia as you await processing of the subclass 801 permanent residence visa application. Whilst in Australia, you are permitted work, study, travel to and from Australia on an unrestricted basis, access Medicare benefits and learn English for free.
Similarly in the case of the grant of a provisional visa 309, you may travel to Australia and await processing of the subclass 100 permanent residence application onshore. Whilst in Australia, you would also be able to work, study, travel to and from Australia on an unrestricted basis, access Medicare benefits and learn English free of charge; the same as for an onshore provisional partner visa.
Note there is a difference in when you can enrol in Medicare; that is, for the subclass 820/801, you can enrol when you apply for the visa. For the subclass 309/100, you can enrol once you arrive in Australia as a provisional visa 309 holder.
Another similarity? You can include eligible family members in your application for both the onshore and offshore partner visa.
Lets now examine the key requirements for grant of the provisional resident 820 visa and the provisional visa 309.
Key Requirements For Grant Of A Provisional Resident 820 Visa
In the most common scenario, to be eligible for grant of a provisional resident 820 visa, you must be the spouse or de facto partner of an Australian citizen or permanent resident, or eligible New Zealand citizen (they must not be prohibited from sponsoring you for the visa). If your spouse or de facto partner has turned 18 years of age at time of application, you must be sponsored by them for the visa. If you are married and your spouse has not turned 18, then you must be sponsored by a parent or guardian of your spouse who has turned 18 and is an Australian citizen or permanent resident, or an eligible New Zealand citizen.
If you do not hold a substantive visa at time of application, you must satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. Essentially, Schedule 3 of the Migration Regulations 1994 applies additional criteria for the grant of a visa to most visa applicants who are are in Australia and who, at the time of application, are unlawful non-citizens, or who hold only a bridging visa (that is, they do not hold a substantive visa). Note this feature of the provisional resident 820 visa does not apply to the provisional visa 309.
A substantive visa is any visa excluding a bridging visa, criminal justice or enforcement visa.
Note importantly that spouse and de facto partner are defined terms in the migration provisions.
Health and character criteria also apply to the grant of a provisional resident 820 visa. Note that all provisional visa applicants must undergo an Immigration Medical Examination to a permanent standard.
Key Requirements For Grant Of A Provisional Visa 309
To be eligible for grant of a provisional visa 309, you must be the spouse or de facto partner of an Australian citizen or permanent resident, or an eligible New Zealand citizen.
Or, you must intend to marry an Australian citizen or permanent resident, or an eligible New Zealand citizen and the intended marriage will, if it takes place, be a valid marriage under the migration provisions (note that the marriage must have taken place before the subclass 309 visa can be granted). Note this feature of the provisional visa 309 does not apply to the provisional resident 820 visa.
Further, your spouse, de facto partner or intended spouse must not be prohibited from sponsoring you for the visa.
If your spouse or de facto partner has turned 18 years of age at time of application, you must be sponsored by them for the visa. If you are married and your spouse has not turned 18, then you must be sponsored by a parent or guardian of your spouse who has turned 18 and is an Australian citizen or permanent resident, or an eligible New Zealand citizen.
Or, if your intended spouse has turned 18 years of age at time of application, you must be sponsored by them for the visa. If your intended spouse has not turned 18, then you must be sponsored by a parent or guardian of your intended spouse who has turned 18 and is an Australian citizen or permanent resident, or an eligible New Zealand citizen.
Note importantly that spouse and de facto partner are defined terms in the migration provisions.
Health and character criteria must also be met for grant of a provisional visa 309. As with the provisional resident 820 visa, all provisional visa applicants must undergo an Immigration Medical Examination to a permanent standard.
Key Requirements For Grant Of A Permanent Subclass 801 Visa
To be eligible for grant of the subclass 801 permanent residence partner visa two years after lodgement of the combined onshore partner application, as the holder of a provisional resident 820 visa, you must continue to be sponsored for the grant of the subclass 820 visa by your sponsoring partner or the Australian citizen or permanent resident, or eligible New Zealand citizen who sponsored you for that visa. You must also be the spouse or de facto partner of the sponsoring partner.
Health and character criteria also apply to grant of the subclass 801 visa.
Key Requirements For Grant Of A Permanent Subclass 100 Visa
To be eligible for grant of the subclass 100 permanent residence partner visa two years after lodgement of the combined offshore partner application, as the holder of a provisional visa 309, you must be the spouse or de facto partner of the sponsoring partner.
Health and character criteria also apply to the grant of a subclass 100 visa.
And Now, The Most Important Aspect Of A Partner Visa Application … Your Relationship
You will have noted that a common thread through the onshore and offshore partner visa requirements are the references to your spouse or de facto partner. A central aspect of a partner visa, which applies to both the subclass 820/801 and 309/100 applications is that your relationship meets the relevant definitions according to the migration provisions. Each of these terms are strictly defined for this purpose and you must provide detailed supporting evidence that your relationship meets the relevant definition to be granted either an onshore or offshore partner visa.
So, what do these terms mean for the purposes of your partner visa application?
Marriage
If you are married to your Australian partner, the following requirements must be satisfied:
- Your marriage must be legally valid in Australia (if you married overseas, it is important to confirm that the marriage is recognised in Australia);
- You and your partner have a mutual commitment to a shared life as a married couple to the exclusion of all others;
- Your relationship is genuine and continuing; and
- You either live together, or you do not live separately and apart on a permanent basis.
De-Facto Relationship
If you are not legally married to your Australian partner, the following requirements must be satisfied:
- You and your partner have a mutual commitment to a shared life to the exclusion of all others;
- Your relationship is genuine and continuing;
- You either live together, or you do not live separately and apart on a permanent basis; and
- You are not related by family
In addition to the above, you must also demonstrate that you have been in a de-facto relationship with your Australian partner for at least 12 months at the time of lodgement of your application.
Exceptions to the 12-month minimum relationship period apply in the following circumstances:
- You can demonstrate that compelling and compassionate circumstances exist for grant of the visa;
- Your sponsoring partner either is, or was, the holder of a permanent humanitarian visa, and before the grant of that visa, had declared the existence of your de facto relationship to Immigration;
- Your sponsor has applied for a permanent humanitarian visa; or
- Your relationship is registered with an Australian State or Territory Government.
In assessing your relationship to determine whether it meets the definition of a marriage or de-facto relationship according to the migration provisions, the Department will consider the following aspects of your relationship:
- Financial – do you jointly own major assets such as real estate, share financial responsibilities and/or combine your financial resources?
- Social – is your relationship known to third parties, for example, to family and friends?
- Household – do you share domestic responsibilities in your home, and how do you organise your daily lives together?
- Nature of your commitment to one another – is your intention to be in a committed, long-term and exclusive married or de-facto relationship?
You must provide evidence to cover each of the above aspects for the entire length of your relationship when lodging your partner visa application. If you are lacking in a particular aspect, provide reasons why and supply appropriate evidence, as applicable.
We recommend that you refer to our article on Partner Visa Evidence Examples for more information in this regard.
Before We Go …
Let us now take stock of further similarities and differences between the provisional and permanent partner visas.
A key aspect of both the onshore and offshore partner visas is the requirement that you are either married to, or are in a de facto relationship with, an Australian citizen or permanent resident, or eligible New Zealand citizen. One difference in this regard is that for grant of the provisional visa 309, you can also be intending to marry an Australian citizen or permanent resident, or eligible New Zealand citizen.
For both applications, you must be sponsored by your Australian spouse or de facto partner, or if you are married and your spouse is aged under 18 years of age at time of application of the provisional partner visa, you may be sponsored by a parent or guardian of your spouse who has turned 18 and is an Australian citizen or permanent resident, or an eligible New Zealand citizen.
A parent or guardian of your intended spouse who has turned 18 and is an Australian citizen or permanent resident, or an eligible New Zealand citizen may sponsor you for the provisional visa 309; this is not the case for the provisional resident 820 visa.
Another key difference? Schedule 3 criteria only applies to the onshore provisional resident 820 visa application where you do not hold a substantive visa at time of lodgement of the application. This is not applicable to the offshore provisional visa 309 visa application.
Most importantly, the common thread between the onshore and offshore partner visas is the requirement that your relationship meets the definition of spouse or de facto partner in accordance with the migration provisions. This is the key aspect of a partner visa application.
Get More Information About The Subclass 820/801 And 309/100 Partner Visas
We have prepared the following detailed guides on the provisional and permanent partner visas (both onshore and offshore) which we highly recommend that you refer to for more information.
Get More Information About The Partner Visa
To learn more about applying for a partner visa, including the eligibility requirements and evidentiary requirements, we recommend that you refer to the following articles.
Partner Visa Sponsor Requirements
What are the requirements for a spouse visa in Australia
How to bring your wife to Australia on a genuine partner visa
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
A Detailed Guide on De Facto Visa Application
Register your de facto relationship in South Australia
Overview of Onshore Australian Partner Visa Schedule 3
Why partner visa applications are so tough
Partner Visa Application Process
Marrying An Australian To Get Residency
Wife Visa Australia Requirements
Evidence Of Genuine And Continuing Relationship
Immigration Sponsorship Bar Policy
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Contact us to book a no-obligation consultation to find out more about a provisional partner visa, including a provisional resident 820 visa and provisional visa 309.
We also recommend that you refer to our articles on articles on the Partner Visa Changes and Australia Partner Visa Changes for a detailed discussion of the changes that have been proposed to partner visas, which could have very significant implications for partner visa applicants in the future. This demonstrates the importance being armed with the latest and most up-to-date information when engaging in this process, to give yourself the best chance of achieving a successful outcome on your application.
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Australia’s migration laws are complex, and each case is different. We recommend that you seek professional advice if you are interested in applying for a visa in Australia, including a partner visa, as being fully informed will give you the best chance of achieving a successful outcome on your case. A migration professional can help you to do this. There are several terms that are defined in the migration provisions. Detailed advice about these is beyond the scope of this article and we would therefore recommend that you seek further information in this regard.
For up to date advice on applying for a visa to Australia, including a provisional visa 309 or provisional resident 820 visa and to join our many happy clients, contact PAX Migration Australia, a leading immigration service providing advice on a range of visas, including partner visas, and who can advise you on the requirements that must be met to qualify for visa grant, including a provisional partner visa. Contact us for a no obligation discussion on how we may be able to assist you to achieve your migration goals in Australia.
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