All you need to know about prospective marriage visa subclass 300 (Australia)

If you intend to marry an Australian citizen or permanent resident, or an eligible New Zealand citizen, and you are both aged 18 years or older, you might like to consider applying for a Prospective Marriage subclass 300 visa. This is a temporary residence visa which allows you to enter Australia to marry your partner within the 9-month visa period. A prospective marriage visa application is to be lodged offshore and has a current average processing time of approximately 12-17 months.

A prospective marriage visa provides a pathway to permanent residence as it is intended that once you are in Australia and you have married your partner, that you will apply for a Partner subclass 820/801 visa onshore within the 9-month visa period.

A partner visa involves applying for a combined temporary and permanent visa. Immigration will first assess whether you qualify for the subclass 820 temporary partner visa. Then two years following lodgement of your partner visa application, you will be assessed for the permanent Partner subclass 801 visa. You can remain in Australia throughout the processing period for the partner visa.

Be aware that taking this pathway can involve a significant amount of time, given that it consists of 3 applications, namely:

  1. Prospective Marriage subclass 300 visa;
  2. Partner subclass 820 visa; and
  3. Partner subclass 801 visa.

Based on current average processing times, you can expect the entire process to take over 5 years. But the benefit of taking this pathway is that subject to meeting all the prescribed requirements at each stage of the application process, you will ultimately become a permanent resident of Australia. Additionally, following grant of the prospective marriage visa, you can enter and remain in Australia until a decision is made on your permanent residence subclass 801 partner visa application (provided you lodge this application as intended), during which time you can work, study and travel to and from Australia on an unlimited basis. You will also be entitled to access Medicare benefits under Australia’s public health system upon grant of the Partner subclass 820 visa.

It is important to note that major changes to the sponsorship application and approval process for the purposes of the prospective marriage and partner visa applications are expected to commence at any time, having recently been passed by the Australian Parliament. As a result of these changes, approval of the sponsorship application will be required before the prospective marriage and partner visa applications can be lodged (whereas under the current process, sponsorship and visa applications can be approved at the same time). How long this will take is not yet known and it is also likely to add more complexity to an already quite complicated application. Having the right information and advice is critical to maximising your chances of achieving a successful result.  We therefore highly recommend that you speak with a migration professional to assist you through this process.

We have prepared a detailed guide on the prospective marriage subclass 300 visa, including the specific eligibility requirements, costs, timing, how to apply, and documents required, which you can access here.

In this article, we examine in more detail some of the key aspects to be aware of if you are considering applying for a prospective marriage subclass 300 visa.

You must be sponsored by your prospective spouse

To qualify for grant of a prospective marriage visa, your fiancé must be approved as a sponsor. Certain individuals are prohibited from being approved as sponsors for this purpose. These sponsorship limitations are as follows:

  • Your fiancé can be approved as a sponsor for a partner, interdependent partner or prospective marriage visa twice in their lifetime;
  • If your fiancé has previously been approved as a sponsor for a partner, interdependent partner or prospective marriage visa, they cannot have another sponsorship approved under any of these visa categories until at least 5 years have passed after the first visa application was made; and
  • If your fiancé has been sponsored for a partner, interdependent partner or prospective marriage visa themselves, they cannot sponsor a partner under any of these visa categories until at least 5 years have passed after their own visa application was lodged.

The above sponsorship limitations can be waived if the Department determines that there are compelling circumstances affecting the sponsor. This would include scenarios where:

  • You and your fiancé have a dependent child who is dependent on them both;
  • Your fiancé’s previous partner has died;
  • Your fiancé’s previous spouse had abandoned them and there are children dependent on your fiancé requiring care and support; and
  • Your relationship with your fiancé is a long-term one.

Be aware that this is not an exhaustive list but rather, the Department will consider all relevant circumstances of your prospective spouse in determining whether to waive the requirements. In general, Immigration will examine:

  • the hardship/detriment that would be caused to your fiancé should the sponsorship not be approved; and
  • your fiancé’s ties to Australia and any resulting hardship/detriment they would suffer should the sponsorship not be approved, and they felt they had to depart Australia to maintain their relationship with you. 

A further sponsorship limitation applies which prevents individuals from sponsoring their fiancé for a Prospective Marriage visa for 5 years from the day the person was granted a permanent Contributory Parent subclass 143 or Contributory Aged Parent subclass 864 visa, if they:

  • were granted their permanent Contributory Parent visa on or after 1 July 2009; and
  • were in a spouse or de facto partner relationship with that person on or before the date their permanent Contributory Parent visa was granted.

This requirement may also be waived in compelling circumstances (for non-financial reasons).

The sponsorship will be refused in cases where the sponsor has an unresolved charge or a conviction for a registrable offence (there are exceptions in certain circumstances). Police checks must be provided by the sponsor for Australia, or for any other country where the sponsor has resided for a total period of at least 12 months.

You must have met your partner in person and be known to each other personally

You must provide documentary evidence with your application to demonstrate that you have met your fiancé in person since you both turned 18 years of age.

This means that that you must have ‘come into each other’s company or physical presence (met in person) rather than by any other means(Minister for Immigration and Citizenship v Yucesan [2008] FCAFC 110).

Written correspondence and contact by phone, fax or the internet would not be accepted as evidence for this purpose (as it does not constitute having ‘met in person’).

To be known to each other personally, the Department will consider the following:

  • evidence that you provide of contact with your partner which demonstrates the development of your relationship; and
  • whether your relationship is traditionally or culturally appropriate based on your circumstances.

The Department may also request that you and your fiancé attend an interview.

There must be no legal impediment to your marriage in Australia

You and your fiancé must both be free to marry, and your intended marriage must be able to be recognised under Australian law as valid.

Circumstances that can prevent a legal marriage in Australia include where either you or your fiancé have previously been married and the divorce is not deemed to be valid under Australian law.

You must genuinely intend to marry within the 9-month visa period

You must provide evidence to demonstrate that arrangements have been made for your marriage ceremony to take place after you first enter Australia. This must be in the form of a signed and dated letter from an authorised marriage celebrant who will conduct the ceremony. This must be on letterhead.

The following information must be included in the letter:

  • the date and the venue of the marriage ceremony; and
  • confirmation that a Notice Of Intention to Marry (NOIM) has been lodged with the celebrant.

The Department may waive the requirement to provide a letter from the marriage celebrant in the following circumstances:

  • if you supply other strong supporting evidence of your intention to marry; or
  • it is not reasonably possible for you to provide the letter from the marriage celebrant.

What is a NOIM?

All persons seeking to marry in Australia must lodge a NOIM with the marriage celebrant who will be conducting the ceremony. It must be lodged in the 1-18-month period before the proposed date of the ceremony.

You are not required to provide the NOIM itself with your visa application, but rather, a confirmation that one has been lodged with the marriage celebrant (which is to be included in the marriage celebrant’s letter, as noted above). The Department can, however, request that you provide a certified copy of the NOIM.

When must the marriage take place?

You and your fiancé must intend to marry within the 9-month visa period. The letter from your marriage celebrant must specify either the date, or date range, when your marriage ceremony is to take place.

If, following grant of the prospective marriage visa, you are unable to marry within the 9-month visa period as intended, there is no provision for you to be granted a further prospective marriage visa onshore. In such a case, you would need to re-apply for the subclass 300 visa offshore, or apply for another visa subclass, depending on your circumstances at that time.

Do you have to marry in Australia?

There is no requirement that you marry your fiancé in Australia. If you wish to marry overseas, you can do so, but you must ensure that you enter Australia within the 9-month visa period. You can then depart to marry your fiancé offshore. Thereafter, you must re-enter Australia within the 9-month visa period so that you can apply for the onshore subclass 820/801 partner visa.

If you do not marry your fiancé within the visa period, you will be in breach of visa condition 8519. Failing to enter Australia by the date specified in your subclass 300 visa grant letter (which will normally be the earlier of the date of your intended marriage, or the validity period of your health and character clearances) will also constitute a breach of your visa conditions.

What happens if you marry your fiancé after you have lodged your prospective marriage visa application, but before a decision is made?

You will no longer qualify for grant of a prospective marriage visa. In this case, you must notify the Department, in writing, of your marriage and that you wish to withdraw your subclass 300 visa application.

Provided your marriage is valid under Australian law, you will be taken to have instead applied for the offshore partner subclass 309/100 visa. You will also be deemed to have already paid the 1st instalment of the visa application lodgement fee for the partner visa.

You must genuinely intend to live together as spouses

The Department will assess the genuineness of your intended spouse relationship by considering several aspects, namely, whether you and your fiancé satisfy the definition of ‘spouses’ for migration law purposes. We refer you to our detailed guide on the prospective marriage subclass 300 visa for further information about this requirement.

Also be aware that the Department will consider cultural and/or religious factors as reasons why you and your fiancé might be unable to provide evidence in support of certain relationship aspects, which are considered by the Department in assessing whether you meet this requirement. The provision of supporting evidence is crucial in this regard, as it allows you to explain and demonstrate the individual circumstances of your relationship. Ensure that you submit all supporting evidence at time of lodgement of your application to avoid further processing delays or a potential refusal. The Department has no obligation to follow-up with you to confirm and/or request additional information and documents. It can proceed to refuse your application automatically.

In conclusion, we note that the above discussion provides an overview of some of the key aspects to be aware of if you are considering applying for a prospective marriage subclass 300 visa. 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.