The purpose of this fact sheet is to provide a general overview of the partner visa 309 and matters which you will need to address should you seek to apply for this visa. It focuses on the more common scenarios that normally arise for offshore partner visa applications 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 the subclass 309 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.
The application process for a provisional 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.
The application involves a 2-step process, whereby you are required to lodge a combined application for a temporary visa (subclass 309) and a permanent visa (subclass 100 visa) at the same time. You will first be assessed for the temporary 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. One important aspect of this assessment is whether you remain in a married or de-facto relationship with your Australian partner.
Long-term relationship requirements for partner visa 309
If you have been in a long-term relationship with your Australian partner, a successful application will result in the grant of a subclass 100 visa in the first instance (i.e. when Immigration first assesses your combined subclass 309/100 visa application). Therefore, the process will be condensed into a single step in this case.
A long-term relationship is one which has been in existence for a minimum period of:
3 years; or
2 years where there is a dependent child of the relationship.
Are you eligible to apply for the subclass 309 visa?
Before you can apply for the partner visa 309 and subclass100 combined, you will need to check whether you meet the visa grant requirements at lodgement date.
The following requirements must be met:
You must be aged 18 years or older (there are exceptions for married couples)
You must be married to, or be in a de-facto relationship with, an Australian citizen or permanent resident, or an eligible New Zealand citizen
Your sponsor must be aged 18 or older (there are exceptions for married couples)
You must be sponsored by your Australian partner (note that certain individuals are prohibited from being a sponsor). If your partner is aged under 18, you must be sponsored by their parent or guardian
Your sponsor must meet a ‘character’ requirement and provide police clearances as evidence that this is satisfied
You must meet health and character requirements
Your relationship status
In determining your eligibility for visa grant, you will need to ensure that your relationship with your Australian partner is in accordance with the relevant definition under visa grant requirements.
To meet these requirements, you must either be married to or be in a de-facto relationship with, your Australian partner. Note that these are defined terms and may not correspond with ordinary usage (for example, a de facto relationship can be defined in various ways according to different laws and countries).
Marriage
If you and your Australian partner are married, you must satisfy the following requirements:
Your marriage must be legally valid in Australia (if you were married overseas, you will need 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 and your Australian partner are not legally married, 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; and
You either live together, or you do not live separately and apart on a permanent basis
You are not related by family
For a de-facto relationship, you will also need to demonstrate that it has been in existence for a minimum period of 12 months at the time of application lodgement.
The following exceptions apply to the 12-month minimum relationship period requirement:
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
The Department will consider the following aspects of your relationship in assessing whether it meets the definition of a marriage or de-facto relationship and is thus in accordance with visa grant requirements:
Financial (joint ownership of major assets, e.g. property, joint financial responsibilities and/or pooling of your financial resources)
Social (is your relationship known to third parties, e.g. to family and friends?)
Household (shared domestic responsibilities in your household, and organising your daily lives together)
Nature of your commitment to one another (do you intend to be in a committed, long-term and exclusive married or de-facto relationship?)
At the time of lodgement, you must provide documentary evidence to address each of the above aspects and which also must cover the length of your relationship. If there is a shortfall in a relationship aspect, you should provide an explanation/s for this and supply relevant evidence, where applicable.
You should also continue to add documents to your application during processing time. Given the current average processing time for this visa class extends beyond 1 year (further discussed below), you could be waiting a substantial period of time before the Department assesses your application. Use this time wisely by gathering and providing documents to the Department evidencing that your relationship continues to meet visa grant requirements. This will also make the process easier for you when it comes to preparing for re-assessment of your application at the permanent residence stage (as discussed below). You can simply attach documents in the online portal at any time post-lodgement.
How can you apply for the subclass 309 visa?
To ensure that you lodge a valid application, you must apply in the correct manner, in accordance with visa lodgement requirements. This is very important to do correctly as failing to do so will result in your application being deemed invalid. Consequently, you will then need to re-apply.
You must be located outside Australia at the time of lodgement, with your 309 visa application form and documents to submitted online. The online portal is also used for Immigration correspondence in relation to your application and can be used to advise the Department of changes to your circumstances, etc. If a migration agent or immigration lawyer lodges your application on your behalf, they will manage this for you.
Your Australian partner must also lodge a sponsorship form and submit their required documents via the same online system.
The type of evidence required includes the following:
Identity documents (e.g. passport and birth certificate)
Character documents (e.g. police clearances)
Relationship evidence documents (see below)
Documents must be provided to address each relationship aspect, as discussed above. Other documents required include:
Marriage Certificate or Relationship Registration Certificate, where applicable
At least two Form 888’s (these are statutory declarations provided by your supporting witnesses attesting that your relationship is genuine)
Written statements about your relationship for both yourself and your partner, covering the history and development of your relationship and the relationship aspects noted above (these statements can be in the form of statutory declarations).
The current application fees for lodging a subclass 309 visa application are listed in the table below
The current application fees for lodging a combined subclass 309/100 visa application are listed in the table below. Note that these fees can change, and you should check the costs that will apply in your case before proceeding with lodgement. Note also that these fees can vary, depending on your individual circumstances. Below is the most common scenario as a guide as to what you can expect.
|
Visa class |
Application lodgement fees – Main Applicant |
Application lodgement fees – Additional Applicants |
|
Subclass 309/100 visa |
$8,085 |
Under 18: $2,025 Over 18: $4,045 |
A payment surcharge may also apply, with the percentage rate depending on the method you use for payment.
Note that an ‘additional applicant’ refers to cases where another person is included in the application, for example, a child.
Other expected costs
You are also likely to incur other costs, in addition to the visa lodgement fee, as part of the application process. The amount of these costs will depend on your individual circumstances.
Other costs may include the following:
Medical examinations, specialist fees and any associated additional costs where issues are identified
Character checks (costs and requirements will depend on the county for which you apply)
Translating original documents where they are not in English
The above is not an exhaustive list and you may incur other costs that are specific to your case.
If you engage the services of a migration agent or immigration lawyer, you will also incur their professional fees, which will be confirmed to you prior to the commencement of your service agreement.
How long will it take for a decision to be made on your subclass 309 application?
The current average processing time for the subclass 309 visa is between 5 and 32 months (based on 25-90% of applications lodged).
Note that this is approximate only and is subject to change. The length of time that your application will take to process will also depend on your individual circumstances, including whether you provide all required documents, or if issues arise in determining whether you meet visa requirements, resulting in further investigations being conducted by the Department.
Can you visit your partner in Australia whilst the subclass 309 visa is being processed?
Given that the current average processing times for the subclass 309 are lengthy (exceeding 1 year), you may be considering whether you can visit your partner in Australia during this period.
You may be able to apply for a visitor visa which, if successful, would allow you to visit your partner for a short period (normally 3 months). You will need to meet visa grant requirements that apply to the visitor visa, including a Genuine Temporary Entrant requirement. This is concerned with ensuring that you intend to visit Australia on a temporary basis for the purpose for which the visitor visa is granted (for example, under the tourist stream, your purpose may be to visit your partner).
You will need to be careful though to ensure you are located offshore for the subclass 309 to be granted. Always keep your contact details up-to-date with the Department and advise of any changes to ensure that you receive all correspondence.
What happens once 2 years have passed since you lodged your partner visa 309 application?
Immigration will assess your eligibility for grant of the subclass 100 permanent residence visa 2 years following lodgement of your combined subclass 309/100 application. You will need to provide requested documents to the Department confirming that you continue to meet visa grant requirements for the subclass 100 visa.
You will receive a list of required documents for this purpose, however, we would recommend that you start preparing/collating your documents before requested to do so by referring to the publicly available document checklist. Note that you should send your documents no earlier than 1 month before the 2-year period has been reached.
What happens if the subclass 309 visa is granted?
You must be located outside Australia for visa grant.
If approved, your visa will allow you to travel to and reside in Australia temporarily, whilst your subclass 100 visa application is processed. The subclass 309 visa will be subject to nil visa conditions, permitting you to work, study and travel without limitation.
What happens if the partner visa 309 is refused?
You may be able to appeal the decision to the Administrative Appeals Tribunal (AAT). This process is called a ‘merits review.’ Note that this option will not be available in all cases, with strict requirements governing all aspects of the review process, including time limits for applying, and who the review application must be.
It is very important to check all such details and to apply in the correct manner. Otherwise, you risk having your review application deemed invalid and then having to re-apply (provided you can still do so by that stage, in light of the strict time limits imposed).
The review will involve the AAT assessing your application and evidence, as lodged with Immigration, and it can also take into account information that you provide as part of the review. The Tribunal will apply the same legislative provisions that were applied by Immigration in deciding your case. It can either set aside or affirm the Department’s original decision on your application.
Given the strict deadlines that apply, ensure that you act quickly if you find yourself in this situation.
For up to date advice on the subclass 309 visa application, including an assessment of your eligibility for visa grant and the process for applying, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide, and we aren’t expensive! Contact us today!