The purpose of this fact sheet is to provide a general overview of the subclass 820 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 temporary partner visa subclass 820, 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 on-shore partner visa application process
The subclass 820 visa is aimed 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.
The application involves a 2-step process, and works in the following way:
- You will first need to lodge a combined application for a subclass 820/801 visa. Note that the subclass 801 visa is a permanent residence visa
- 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.
When you initially submit your application (in step 1), you will first be assessed for the subclass 820 visa only. Once the required 2-year period following application lodgement has passed, the Department will assess whether you meet the specified requirements for a grant of the subclass 801 permanent residence visa.
Long-term relationship
In certain circumstances, your application will be condensed into a single step. In this case, if your application is successful, you will be granted a subclass 801 permanent residence visa at step 1.
This will occur if you have been in a long-term relationship with your Australian sponsoring partner. ‘Long-term’ is defined as being a minimum period of:
- 3 years; or
- 2 years if there is a dependent child of the relationship.
Are you eligible to apply for the subclass 820 visa?
As a first step, you need to ensure that you meet visa grant requirements before lodging your subclass 820/801 visa application. These requirements are listed below.
- 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
Your relationship
A key aspect to consider when assessing your eligibility for a partner visa is whether your relationship with your Australian partner is genuine and is in accordance with the visa grant requirements.
To meet the relationship requirement for the subclass 820 visa, you must either be married or be in a de-facto relationship with your Australian partner. Note that it is important to carefully check the definition of these terms as they apply to the application as their meaning may not correspond with ordinary usage.
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; and
- You either live together, or you do not live separately and apart on a permanent basis
- 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 subclass 820/801 visa application. If you are lacking in a particular aspect, provide reasons why and supply appropriate evidence, as applicable.
It is also recommended that you continue to add documents to your application whilst it is being processed. Given the current lengthy processing times (discussed below), you could be waiting close to 2 years before the Department assesses your application. This is a significant period of time and you should use it effectively in view of further visa requirements that will apply when it comes to an assessment of your eligibility for the subclass 801 visa. At that stage, you will need to provide evidence to confirm that your relationship continues to meet visa grant requirements (this is discussed below).
The online system makes it an easy process to attach documents and you can do this at any time following lodgement.
Your visa status
Another key aspect to check before you lodge your application is to confirm your visa status at the time of lodgement and whether this complies with the requirements. This is a relevant factor for the subclass 820/801 due to the fact that the application must be submitted whilst you are located in Australia (i.e. it is an onshore application).
The requirements specify that in most cases, you must hold a substantive visa at the time of lodgement. A substantive visa is generally any visa, excluding a bridging visa.
If you do not hold a substantive visa, you may still be able to apply, provided you meet Schedule 3 criteria. It is important to be aware that meeting schedule 3 criteria requires you to satisfy a ‘high threshold’ test and generally requires that special circumstances exist that are compelling in nature for this criterion to be met. This is especially the case if you lodge your application more than 28 days after you held your last substantive visa. Having to satisfy Schedule 3 is not a simple exercise and great care must be taken whenever it arises as an issue. For this reason, we would highly recommend if you find yourself in this situation, that you seek professional advice from a migration agent or immigration lawyer before lodging your application. This will help to ensure that you are fully informed about what this means for you, and how it may affect your application.
How can you apply for the subclass 820 visa?
Once you have determined that you meet the visa grant requirements for the partner visa, the next step is to ensure that you apply in the correct manner, in accordance with visa lodgement requirements.
Matters such as where you are located at the time of lodgement and the method of applying are very important to get right. If you do not lodge according to requirements, your application will be deemed to be invalid and you will need to re-apply (note that your situation may have changed by then, for example, your visa status, which may affect a subsequent application).
You must be onshore when applying for the subclass 820/801 visa and submit the application online, together with specified documents addressing visa grant requirements, to demonstrate that you are eligible for visa grant. The online portal also allows you to receive correspondence from the Department relating to your application and to advise the Department of changes to your circumstances, etc. If you engage a migration agent or immigration lawyer to lodge your application on your behalf, they will manage this process for you.
Your Australian partner must also lodge a sponsorship form and submit specified documents, as required, using the same online system.
The type of evidence you will need to provide 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 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.
The current application fees for lodging a subclass 820 visa are listed in the table below
The current application fees for lodging the combined subclass 820/801 visa application are listed in the table below. Note that these fees are subject to change and you should confirm the costs that will apply to your application before you lodge. These fees can also vary, depending on your individual circumstances. Below is the most common scenario to give you an idea of what you can expect.
|
Visa class |
Application lodgement fees – Main Applicant |
Application lodgement fees – Additional Applicants |
|
Subclass 820/801 visa |
$8,085 |
Under 18: $2,025 Over 18: $4,045 |
A payment surcharge may also be applied, with the percentage rate depending on the method you use to pay.
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. The amount will depend on your individual circumstances.
Additional costs can include the following:
- Health examinations, and where issues are identified, specialist fees and any associated additional costs
- Character checks (costs and requirements will depend on which country you apply for)
- Translating documents where originals are 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 migration agent or immigration lawyer, you will incur professional fees for their service. These will be confirmed to you before you agree to proceed with their services.
How long will it take for a decision to be made on your subclass 820 application?
The current average processing time for the subclass 820 visa is between 6 and 33 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, and if your application involves more complex matters (such as meeting schedule 3 criteria).
What happens when you lodge temporary subclass 820 application?
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.
If it is the case that you do not hold a valid visa at application lodgement date (and you are therefore an unlawful non-citizen), the BV will ‘regularise’ your status, such that you will have the legal right to remain in Australia in accordance with the conditions of your bridging visa.
There are various types of bridging visas which the Department can grant to you, dependant on your visa status at the time of lodgement.
If you hold a substantive visa at the date of lodgement of the application, it will continue to remain in effect until such time as it expires, or a decision is made on your subclass 820 application, whichever occurs earlier. If your substantive visa expires during application processing time, the bridging visa will come into effect at that time.
If you do not hold a substantive visa at the time of lodgement, the bridging visa will come into effect immediately.
Under the terms of the bridging visa, 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.
What happens once 2 years have passed since you lodged your application?
You will be required to provide relevant evidence to Immigration to confirm that you continue to meet visa grant requirements for the subclass 801 visa. The Department will provide you with a list of documents required for subclass 801 visa assessment purposes. Note that this information is publicly available, meaning you can gather and prepare your documents before the Department requests them. Keep in mind though that you should send your documents no earlier than 1 month before the 2-year period has been reached.
What happens if the subclass 820 visa is granted?
You must be located onshore for the visa to be granted.
If your visa is approved, you will have the right to remain in Australia temporarily, whilst you await processing of your subclass 801 visa. You will be subject to nil visa conditions, meaning you can work, study and travel without restriction.
What happens if the subclass 820 visa is refused?
You may be able to apply to the Administrative Appeals Tribunal (AAT) to have the decision reviewed. This is called a ‘merits review.’ There are specific circumstances for determining eligibility and not all decisions can be reviewed (e.g. if you fail to meet the character requirement).
The AAT will assess your application and evidence, as lodged with Immigration, also taking 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 the Department ruling that the original decision is to stand.
Strict deadlines apply for lodging an appeal, and it is thus very important that you act quickly should you find yourself in this situation.
For up to date advice on the subclass 820 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!