Overview of all partner visas:
Intended marriage (fiance(e)): Prospective Marriage visa
Married (de jure) relationship: Partner visa
De facto partner relationship: (including a same-sex relationship): Partner visa
The partner visa stream is designed for applicants who are either intending to marry, or who are already in a married or de facto relationship with, an Australian partner. An ‘Australian partner’ for this purpose means an Australian citizen or permanent resident visa holder, or an eligible New Zealand citizen. There are three options available in this visa category, all of which provide a pathway to permanent residence in Australia. These visa options are also available to applicants who are in same-sex relationships.
As part of visa grant requirements, your Australian partner must be approved as a sponsor on your application. Age requirements also apply.
The starting point in determining the class of partner visa which you may qualify for is based on assessing the nature of your relationship with your Australian partner, and whether the application is to be lodged onshore or from outside Australia.
Married and de facto relationships
If you are married to, or are in a de facto relationship with, an Australian partner, and you are located onshore, you may consider whether you are eligible to apply for a Partner subclass 820/801 visa.
If you are outside Australia, the equivalent offshore application is the Partner subclass 309/100 visa.
For both the onshore and offshore partner visa options, you are required to lodge a combined application for a temporary and permanent residence visa. At the first processing stage, you will be assessed for the temporary visa only. If your application is successful and the visa is granted, you will be permitted to reside in Australia with your partner whilst you await a decision on the permanent residence visa, which the Department will commence processing once 2 years have passed since lodgement of your application.
If you apply for an onshore partner visa, you will be granted a bridging visa, which will allow you to remain lawfully in Australia whilst you await processing of your temporary subclass 820 visa application. Note however that if you hold a valid visa at that time, the bridging visa will generally only come into effect once your existing visa expires. As bridging visas are a complex area of the law, we would recommend that you seek further information and advice on your visa status and how the bridging visa will apply to you, based on your personal situation.
An important aspect of lodging an onshore partner visa application is to first ensure that you can validly lodge the application in Australia and that you meet time of application requirements for visa grant. Schedule 3 criteria prescribes additional requirements for the grant of the onshore partner visa in circumstances where you do not hold a substantive visa at the time of lodgement of your application (a substantive visa is any visa excluding a bridging visa, criminal justice or enforcement visa).
If you lodge an offshore partner visa application, you will be permitted to enter Australia upon grant of the temporary subclass 309 visa. Given the extended processing times currently being experienced (which can take on average 14-20 months based on current estimates), you might consider applying for another class of visa, such as a visitor visa, to enable you to visit your partner whilst you await a decision on the temporary partner visa application (provided you are eligible).
Upon grant of the offshore temporary partner residence visa, you can lawfully reside in Australia until your permanent residence visa application is decided (this is the same for both the onshore and offshore applications).
Relationships which are classified as ‘long-term’ under the migration provisions are assessed for both the temporary and permanent residence visas at the first processing stage and are therefore fast-tracked by ‘skipping’ a step.
To qualify for a partner visa, a key requirement is that your relationship satisfies the relevant definition of either a ‘spouse’ or ‘de facto’ relationship in accordance with the migration provisions. Therefore, things may not be as clear-cut as one might anticipate and differences can arise in what is actually accepted for visa application purposes. For example, if you are applying on the basis of a ‘spouse’ relationship with your Australian partner, your marriage must be valid under Australian law. A marriage that took place outside Australia and which is recognised in an overseas jurisdiction will not necessarily be legally recognised in Australia.
Similarly, for a ‘de facto’ relationship, its ordinary common usage meaning, or how it is defined under other laws in Australia or overseas, may not necessarily equate with how it is defined under the Migration Act and Regulations. Assessing whether you satisfy either of these terms (depending on your personal situation), will be one of the most important aspects of your partner visa application. The bulk of your application will consist of submitting evidence to support your claims that your relationship is genuine and that it satisfies the relevant meaning of either a spouse or de facto relationship under the migration provisions.
TDe facto relationships are also subject to additional eligibility requirements to qualify for a partner visa.
Engaged to be married
If you are intending to marry your Australian partner, you may consider applying for a Prospective Marriage subclass 300 visa .This application must be lodged offshore.
A prospective marriage visa is a temporary visa which allows you to enter Australia to marry your Australian partner, and to apply for an onshore Partner subclass 820/801 visa within the 9-month visa period. The process following this stage is then the same as outlined above for married and de facto couples. Be mindful that as this visa pathway involves a 3-stage process, it can be quite a lengthy wait time until your reach the permanent residence stage. Based on current average processing times published by the Department, this could take over 5 years. For the majority of this processing period, however, you will be able to reside in Australia with your partner as a temporary resident (as you can enter Australia once the prospective marriage visa is granted, which can take between approximately 15-21 months to process based on current estimates).
For a prospective marriage visa, among the key requirements for visa grant, you must demonstrate that you genuinely intend to marry your Australian partner within the 9-month visa term; that you genuinely intend to live together as spouses (which will have the same meaning as for the partner visa discussed above); that you have met in person since each turning 18 years of age; and that you are known to each other personally. You must submit specific documentary evidence confirming your intention to marry within the required period, in the form of a letter from your marriage celebrant, specifying the proposed date and the venue of the marriage ceremony, and confirming that you have lodged a Notice Of Intention to Marry (NOIM) with the celebrant.
So, where to from here?
If you are considering applying for a visa in the partner stream, a great starting point is our partner visa assessment tool. You can use this to help you to assess whether your relationship is up to immigration standards. We also recommend that you refer to our detailed guides on the onshore Partner subclass 820/801 visa, the offshore Partner subclass 309/100 visa, and the Prospective Marriage subclass 300 visa, for a discussion on the specific eligibility requirements, costs, timing, how to apply, and documents required for each of these visa subclasses.
Partner visa applications are complex
A common perception is that applying for a partner visa should be, on the face of it, a relatively simple exercise. If you are in a relationship with an Australian, whether that be in a marriage or a de facto relationship, most people would think this should be reason enough to qualify for grant of a partner visa in Australia. But in reality, this is not always the case. Partner visa applications can be tough to get through.
The above discussion demonstrates the importance of conducting a careful and considered review and having an in-depth understanding of the relevant definitions under the migration provisions, valid visa lodgement and grant criteria, and the documentary requirements as they apply to your personal circumstances. Applying for a partner visa involves specific, detailed and complex concepts. Some explanatory materials which are required as part of this analysis are not publicly available, such as Immigration policy, a very important source of information as it provides a guideline as to how the Department interprets the migration provisions. Case law is another important element of the process in many cases.
Specific documentary evidence must be provided to the Department, to address each aspect of a partner visa application. Simply referring to the Immigration website will, in many cases, not provide you with all of the information you need, especially if you have a more complex case. Adding to the complexity is the increasing frequency with which changes are being made to the Migration Act and Regulations.
Additionally, impending changes to the application process, which will have a significant impact on both the partner and prospective marriage visa subclasses, are due to commence at any time.
How can you ensure that you give yourself the best chance of a successful outcome on your application?
First, you must assess your eligibility for the relevant partner visa stream which you are interested in applying for. In addition to the information guides referred to above, we have prepared additional resources, which are available on our website, to help you to get a better understanding of the important issues to be aware of if you are considering applying for a visa in the partner visa stream.
Some useful information on de facto relationships can be found in our detailed guide on the de facto visa application, along with further information on whether you might be eligible to apply for a de facto partner visa in Australia.
For further detailed information on the prospective marriage visa, please refer to the following link on our website:
Just as important is being aware of the most common reasons for partner visas being refused, and the types of issues that case officers look for when processing a partner visa application. This allows you to pre-empt any potential problems arising and deal with them head-on at the visa lodgement stage. Waiting for the Department to request further information about any concerns that it may have with your application is not a strategy that we would recommend. It has no obligation to do so and can simply proceed to automatically refuse your application. It is therefore very important to address all relevant valid visa lodgement and grant requirements, as they apply to your particular circumstances, by providing thorough supporting evidence at time of lodgement of your application. Do not leave it to chance and risk a refusal.
One of the key aspects of meeting the definition of either a spouse or de facto relationship for the purposes of a partner visa application is demonstrate that you and your Australian partner are in a genuine and continuing relationship as defined by the Migration Act and Regulations. Failing to adequately address this criterion is a common reason for partner visa applications being refused. Reviewing a practical example can help to explain how this works in practice. Please refer to our case study on Mario, whose partner visa had been refused on the grounds that he was not in a genuine married relationship with his wife, Mia.
In conclusion, we note that the above discussion provides an overview of some of the key issues to be aware of if you are considering applying for a visa in the partner stream. 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 prospective marriage and partner visa application process and eligibility requirements, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.