The purpose of this fact sheet is to provide a general overview of the subclass 801 visa 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 onshore partner visa applicants 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 801 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 subclass 801 visa is a permanent residence partner visa which is applied for and granted onshore. It forms part of a combined application comprising the following visa subclasses:

If you are married or in a de-facto relationship with an Australian citizen or permanent resident, or an eligible New Zealand citizen, this may be an option for you to consider as a potential pathway to permanent residence in Australia. Your Australian partner must sponsor you for this visa.

What is the process for applying for the subclass 801 visa?

Applying for an onshore partner visa is a two-stage process, as outlined below.

Stage 1

The first step is to lodge a combined subclass 820/801 visa application. Under this process, you are applying for both the temporary and permanent residence visas at the same time, with a single lodgement fee being payable.

You will first be assessed for the subclass 820 visa. Subject to satisfying visa grant requirements, you will be granted a temporary visa. This will allow you to reside in Australia whilst your subclass 801 application is processed. You will be entitled to enrol in Medicare, and work and study in Australia.

Stage 2

Two years following lodgement of your application, you will be required to provide specified evidence to Immigration to demonstrate that you continue to meet visa grant requirements for the partner visa, including, most importantly, that you remain in a married or de-facto relationship with your Australian sponsoring partner. Note that if your relationship has broken down, there are circumstances which allow you to continue to be assessed for permanent residence, despite no longer being in a relationship with your Australian sponsoring partner (for example, family violence).

Long-term relationship

If you have been in a long-term relationship with your Australian sponsoring partner, your subclass 801 visa will be processed together with your subclass 820. If your application is successful, you will be granted permanent residence at the first stage (thereby condensing stages 1 and 2 into a single step).

A long-term relationship is one where you have been in a relationship with your Australian partner for a minimum period of:

  • 3 years; or
  • 2 years if there is a dependent child of the relationship.

Am I eligible to apply for the visa subclass 801?

You must meet the following requirements to satisfy visa grant requirements:

  • You must be aged 18 years or older (note there are exceptions if you are married)
  • You must be in a married or de-facto relationship with an Australian citizen or permanent resident, or an eligible New Zealand citizen
  • Your sponsor must be 18 years of age or older (note there are exceptions if you are married)
  • You must be sponsored by your Australian partner (note in specified circumstances, a person is prohibited from being a sponsor). If your partner is under 18 years of age, their parent or guardian must sponsor you
  • Your sponsor must meet a specified ‘character’ requirement and supply relevant police clearances to demonstrate this
  • You must hold a substantive visa (generally any visa excluding a bridging visa) or meet additional requirements in accordance with Schedule 3 criteria
  • You must meet health and character requirements

Will my relationship qualify for the permanent partner visa 801?

To meet the relationship requirement for the subclass 801 visa, you must either be married or be in a de-facto relationship with your Australian partner.

Marriage

Your marriage must satisfy the following criteria:

  • It must be a legally valid marriage 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; and
  • You either live together, or you do not live separately and apart on a permanent basis
  • You are not related by family

You must have been in a de-facto relationship with your Australian partner for at least 12 months at the time of lodgement of the application unless you meet one of the following exceptions:

  • 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 determining whether your relationship with your Australian partner is genuine and that it meets the definition of a marriage or de-facto relationship according to the migration provisions, Immigration will consider the following aspects of your relationship:

  • Financial (to demonstrate joint ownership of real estate/other major assets and joint responsibility for financial liabilities)
  • Social (to demonstrate that your relationship is known to third parties)
  • Household (to demonstrate shared household responsibilities)
  • Nature of your commitment to one another (to demonstrate 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 the combined subclass 820/801 visa application. If you are lacking in a particular aspect, provide reasons why and supply appropriate evidence, as applicable.

How can I apply for a subclass 801 visa?

The combined subclass 820/801 visa application must be lodged in Australia. You will need to lodge an application form online and provide specified documents addressing visa grant requirements to demonstrate that you are eligible for visa grant. Your Australian partner will also be required to lodge a sponsorship form and must also provide specified documents, as required. This will include the following types of evidence:

  • Identity documents (e.g. passport and birth certificate)
  • Character documents (e.g. police clearances)
  • Relationship evidence documents (see below)

You will need to provide documents to address each of the relationship aspects, 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 supporting witnesses attesting that your relationship is genuine)
  • You and your partner should each provide a written statement or Statutory Declaration about your relationship, which covers the history and development of your relationship, as well as the relationship aspects discussed above.

What are the costs to lodge a subclass 801 visa application?

Set out below are the current application fees for the combined subclass 820/801 visa. Note that these are subject to change and it is important that you confirm the costs that will apply to your application before you lodge. Note also that these fees can vary, depending on your individual circumstances. Below is the most common scenario to give you an idea of what to expect in this regard.

 

Visa class

Application lodgement fees – Main Applicant

Application lodgement fees – Additional Applicants

Subclass 820/801 visa

$7,160

Under 18: $1,795

Over 18: $3,585

 

A payment surcharge may also be applied, with the percentage rate dependent on your method of 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 should also be prepared to incur other costs as part of the visa application process, which will differ for every application. Additional costs can include the following:

  • Medical examinations and additional specialist fees where health issues are identified
  • Character checks (police clearances for each country will differ in terms of requirements and costs)
  • Translating documents where the original is not in English

Note the above is not an exhaustive list and you may incur additional costs that are specific to your case.

If you engage a professional to provide you with immigration advice and assistance, such as a Registered Migration Agent (RMA), you will also incur professional fees for this service. These will be confirmed to you by the RMA before you agree to engage their services.

How long will it take for a decision to be made on my subclass 801 application?

The current average processing time for the subclass 801 visa is between 20 and 26 months (based on 75-90% of applications lodged).

Note that this is approximate only and is subject to change. How long your application takes to process will also depend on your individual circumstances.

What happens when I lodge my application?

You will automatically be granted a Bridging Visa which allows you to reside in Australia whilst you await a decision on your application. The type of bridging visa issued will depend on your visa status at the time of lodgement. You will be permitted to enrol in Medicare and to study. You will also have the right to work in Australia, however, you may need to separately apply for work rights in certain cases. Travel rights also need to be applied for separately in all cases.

How do I prove that I am still in a relationship with my partner after 2 years?

Once 2 years have passed since you lodged your combined subclass 820/801 visa application, you will need to supply relevant documents to Immigration to confirm that you continue to meet visa grant requirements for the partner visa. You do not need to wait for the Department to contact you and should send your documents no earlier than 1 month before the 2-year period.

The types of evidence required at this stage include:

  • Statutory Declarations by you and your partner relating to your relationship
  • Statutory Declarations by two persons known to you and your partner about your relationship
  • Police clearances, as applicable to your circumstances
  • Updated documents relating to those previously supplied (e.g. new passport, marriage certificate of you and your partner have since married)
  • Relationship evidence covering the period from lodgement of your combined subclass 820/801 visa application to date

What happens if the subclass 801 visa is granted?

You will need to be located onshore for the visa to be granted.

If your visa is approved, you will have the right to remain in Australia permanently, with a travel facility valid for 5 years.

What happens if the subclass 801 visa is refused?

You may have the option to apply for a review of the decision to the Administrative Appeals Tribunal (AAT). There are very specific circumstances for determining eligibility and not all decisions can be reviewed by the AAT, for example, if you fail to meet the character requirements.

The appeal is called a ‘merits review,’ meaning that the AAT will consider your evidence as lodged with Immigration, and it can also take into account any additional information which you provide as part of the review. The AAT will apply the same legislative provisions as were applied by Immigration in making its decision. It can either set aside the original decision, or it may agree with Immigration and the original decision will stand.

Strict deadlines apply for lodging an appeal, and it is thus vital that you act quickly should you find yourself in this situation.

For up to date advice on the subclass 801 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! Just ask us!