The onshore 820/801 partner visa and offshore 309/100 partner visa will allow you to enter Australia as either a temporary visa holder (while you complete a wait period before you can lodge your permanent partner visa application, which is approximately two years after the date of lodgement of your initial application), or directly as a permanent residency visa holder if your relationship satisfies the long-standing relationship requirements. You can apply for a partner visa either on the basis of a de-facto relationship, or a spouse marriage relationship.
If you are firstly granted a temporary partner visa, then this visa will allow you to stay in Australia until your later permanent residency stage application is decided.
Your visa application must be sponsored by your Australian citizen, permanent resident or eligible New Zealand citizen partner. Your partner must be eligible to sponsor your visa, which may be affected by the sponsorship limitation requirements. Your sponsor also needs to provide police clearances and character information to demonstrate that he or she satisfies the character requirements for sponsorship, and confirm that he or she will comply with the sponsorship undertakings.
- 1 De facto relationship requirements
- 2 Spouse relationship requirements
- 3 Common requirements for all applications
- 4 Documents checklist
- 5 Department’s assessment of your evidence
- 6 Preparing your statutory declarations
- 7 Preparing your online application forms
- 8 Online visa form FAQ
- 9 Department’s processing times
- 10 Uploading further evidence during processing
- 11 Responding to Department requests
- 12 Department’s decision
- 13 Schedule 3 & Compelling reasons requirement
De facto relationship requirements
Unless an exception applies, at minimum, you need to have been in a de-facto relationship with your sponsoring partner for at least a period of 12 months prior to the date of lodgement of your application.
The 12 month requirement will be waived if your relationship is registered with the relevant Australian state or territory government authority. Relationships registries operate in Queensland, New South Wales, Victoria, Tasmania and the Australian Capital Territory. You can contact the agency for births, deaths and marriages in your state or territory for information in relation to registering your relationship, or see their relevant website for eligibility and application requirements. You are allowed to register your relationship after you lodge your partner visa application, and this would also allow you to waive the 12 month relationship at the time of application requirement. Hence, you can firstly proceed with lodging your de-facto partner visa, then apply for registration of your relationship and then upload this certificate to your application once this is issued.
This 12 month requirement can also be waived if compelling and compassionate circumstances apply to your application.
Registration of your de-facto relationship with a foreign government cannot be used to waive the ‘12 month de-facto relationship’ requirement. However, such registration can be submitted as evidence of your de-facto relationship.
Both you and your sponsoring partner need to be over 18 years of age at the time that you lodge your application. You and your sponsor also cannot be related (i.e. have a parent in common, or be a descendant or ancestor of each other).
Spouse relationship requirements
You can apply once you are legally married with your partner, either in or outside of Australia, and this marriage is legally valid in Australia. If you were married outside of Australia, then your marriage will generally be regarded as valid in Australia if your marriage is valid in the country where you were married and registered your marriage. You can contact the agency for births, deaths and marriages in your state or territory if you have any questions about the validity of your marriage under Australian law.
Common requirements for all applications
The following requirements will apply to all partner visa application (i.e. de-facto or spouse relationship):
- You must be living together or, if not, any separation must be only temporary (and you would need to explain how your separation is only temporary if applicable)
- Mutual commitment to a shared life to the exclusion of all others
- Genuine and continuing relationship with your partner
- Health and character: Primary visa applicant and all members of his or her family unit must satisfy the health and character requirements for the grant of a permanent residency visa. If any member of the family unit fails to satisfy the health and/or character requirements, then the visa applications may be refused for the primary applicant and all family members. Members of the family unit who are not included in the visa application also need to satisfy the health and character requirements, even though he or she is not included in the permanent residency visa application. The sponsor does not have to complete any health examinations or pass any health requirements for this visa application.
The Department’s online system requires you to pay for the application before you access the next web pages in your Immiaccount which allows you to upload your supporting documents, and also access your HAP ID which is required for your health examinations (using the ‘View health assessment’ link).
You just need to upload clear scanned copies for all supporting documents. You do not need to provide certified or notarised copies unless the case officer specifically asks for this which is generally rare.
You need to organise the following supporting documents for your application (as applicable to your circumstances and relationship), as well as statutory declarations for both yourself and your sponsor which will outline the history and circumstances of your relationship – and English translations if applicable:
|Document type||Relevant documents may include|
|Identification and government issued documents||Passports – applicant, sponsor and all family members included in your visa application.
Birth certificates – applicant, sponsor and all family members included in your visa application.
Marriage certificate if applicable (or if you have your future wedding ceremony booked, then documents demonstrating the confirmation and booking of your wedding).
Relationship registration if applicable.
If you or your sponsor have been permanently separated, divorced or widowed – divorce certificate/decree, statutory declaration/separation certificate, or the death certificate of the deceased partner (as appropriate).
If you, your sponsor or anyone included in your application has changed his or her name – evidence of the name change such as prior marriage certificate, or government issued change of name certificate.
|Wedding, engagement and honeymoon related documents||Confirmation of engagement ceremony.
Wedding invitation to guests.
Receipts for wedding or engagement expenses (e.g. venue booking, food, car hire, gifts and jewellery purchases).
Cultural or religious rituals or ceremonies completed before or after your wedding.
Flights tickets or receipts for any travel for your engagement, wedding or honeymoon.
Bookings and receipts for honeymoon (e.g. hotels, gifts, shows, events, activities, travel).
|Household aspect of your relationship||Household bills and expenses, which ideally should be joint accounts that will have both your names (e.g. rent, water, electricity, internet, council rate notice).
Evidence of your current residence such as your lease, property ownership certificate, council rate notice with your name and address (ideally this should be a joint lease or demonstrate that your property asset is jointly owned).
Joint purchase of household items (e.g. cars, appliances, furniture, electronics).
|Financial aspect of your relationship||Joint bank account which demonstrates that yourself and your sponsor have both regularly used your joint account for your general living expenses and/or both regularly contributed to your joint savings account (yourself and your sponsor do not both need to be earning your own independent incomes. You can just demonstrate that you and your sponsor have both regularly used your joint account, and explain your financial and work circumstances in your supporting declaration).
Joint liabilities (e.g. loans, insurance).
Sharing of finances such as regular international transfers, bank transfers or online transfers to each other. This evidence is generally important if you are living apart for a significant period of time during the Department’s processing time.
Naming each other as beneficiary of your respective wills, superannuation savings, insurance benefits etc.
|Social aspect of your relationship||Flight tickets or receipts evidencing your joint holidays or travels.
Photos Emails/letters to each other.
Social media interaction with each other.
Records of telephone conversations or messages.
Receipts for presents, movies, dinners, social events etc.
Social invitations to you both for weddings, birthdays, Christmas and other holidays etc.
Letters, invitations or correspondence addressed to both you and your partner at your common address
Form 888 from Australian friends or family (you can copy and paste the same questions from this Form 888 into a statutory declaration, and get this supporting evidence from non-Australian citizens or permanent residents).
|Child or children from your relationship if applicable||Evidence that the applicant has the legal right to determine where the included child or children shall live (e.g. court order of custody, divorce decree with custody details).
Evidence of school attendance such as bills, report cards etc.
Evidence of the child’s or children’s cost of living, such as receipts for clothing, membership with sporting club etc.
If any child included in your application is adopted, then relevant adoption papers will be required.
Evidence of dependency for any dependant child or children aged 18 years or over included in your application.
You will need to demonstrate that any included child or children who are 18 years of age or over are financially dependant on you or your sponsor for his or her basic needs of food, shelter and clothing, and how long this support has been provided. Evidence may include bank statements, money transfers, rent receipts, education fee receipts etc.
|Character related documents||Police clearances – applicant and sponsor need to provide police clearances for all countries that he or she has lived in for 12 months or more (cumulatively) in the last 10 years.
Military service records, such as discharge records – this applies to the visa applicant only.
Form 80 – it isn’t mandatory to provide this Character information form, but the Department may ask for this as a requested document. You can potentially save yourself some time by completing and uploading this form during the Department’s processing time, which could avoid the delay of having to receive and respond to a Department request.
You can only upload a total of 60 documents to your visa application after lodgement, and you can also upload a total of 60 documents to your sponsor’s application. With your visa application, we generally recommend uploading up to 40 documents after the lodgement of your visa application. This would give you space to upload at least another 20 further documents after lodgement to demonstrate your continuing relationship during the Department’s processing time, and also to provide further information and documents in case you receive any Department requests after lodgement for further information.
This does mean that you will need to compile multiple documents into a single PDF or Microsoft Word document. You can screenshot your computer or phone and save this as a single image for upload, or copy and paste and compile these into a Microsoft Word document.
You should be compiling and organising your relationship related documents and images into single file PDF or Word documents such as:
- Social Invitations to wedding, birthdays etc.
- Social Photos 2011-2014
- Social Tickets or receipts
- Social Holiday to USA
- Household Gas bills 2017
- Household Council rates 2017
- Household Rent expenses 2017
- Financial Joint account 2011-2013
- Form 888 sponsor father
With your photos, you can use Paint in Windows or Paintbrush in Apples to add brief caption text to your photos to add some information and context to the photos which can help your case officer understand what you are trying to demonstrate, such as the below example:
You don’t necessarily need to undertake compiling for all your documents, as it is appropriate to upload some documents just as single file documents such as:
- ID documents such as passport
- Police clearances
- Marriage certificate
In relation to the documents that you should have ready at the time that you lodge your visa application, so that you can upload these to your visa application after lodgement, we provide the following recommendations:
- You should upload as many documents as possible, and as you have available after lodgement
- You don’t have to have all your supporting documents organised and uploaded to your visa application immediately after lodgement. You can log back into your Immiaccount at any time after lodgement and continue to upload further supporting documents
- There is no strict deadline by which you need to upload your documents after you pay and lodge your visa application. Given the Department’s long processing times, your application will likely be sitting in the Department’s processing queue for a number of months before this is allocated to any case officer. However, we don’t recommend that you delay the uploading of your documents. You should upload as many documents as possible, as soon as possible
- You can provide your police clearances after you lodge your visa application during the Department’s processing time. You don’t necessarily need to have all your police clearances at the time that you lodge your visa application
Department’s assessment of your evidence
Your case officer will place more weight on some forms of evidence/documents relative to others, so it is important to provide the Department with plenty of convincing, organised and understandable evidence of your relationship:
Documents that show joint assets, liabilities, undertakings, bequests etc. Examples include:
- Joint bank account which demonstrates that yourself and your sponsor have both regularly used your joint account for your general living expenses and/or both regularly contributed to your joint savings account (yourself and your sponsor do not both need to be earning your own independent incomes. You can just demonstrate that you and your sponsor have both regularly used your joint account, and explain your financial and work circumstances in your supporting declaration)
- Jointly owned assets such as real estate, investment portfolios, bonds or other investments
- Joint liabilities (e.g. loans, mortgage, insurance)
- Sharing of finances such as regular international transfers, bank transfers or online transfers to each other. This evidence is generally important if you are living apart for a significant period of time during the Department’s processing time
- Any joint undertakings such as a joint lease
- Naming each other as beneficiary of your respective wills, superannuation savings, insurance benefits etc.
This type of evidence is strong because it can be relevant to multiple factors which your case officer needs to consider. These documents usually state both your name and your sponsoring partner’s name, your address and a date. Consequently, these documents can evidence your co-habitation as well as the duration of your relationship. More importantly, these documents demonstrate the joint commitments that you and your partner have made together, such as jointly incurring a loan or mortgage, or ensuring that your assets are left to each other under your wills and/or superannuation savings.
As part of your application, you and your partner confirm that you have a ‘mutual commitment to a shared life (to the exclusion of all others)’. Hence, the Department expects you to share various aspects of your lives with each other, such as finances, liabilities, assets, contractual obligations, sharing income etc.
Child or children from your relationship
Demonstrating that you and your partner are jointly responsible for the care and support of your child or children will likely be seen as strong evidence of your relationship:
- Full unabridged birth certificates
- Evidence of school attendance such as bills, report cards etc.
- Evidence of the child’s or children’s cost of living, such as receipt for clothing, membership with sporting club, education fee receipts etc.
- Evidence that the applicant has the legal right to determine where the included child or children shall live (e.g. court order of custody, divorce decree with custody details) if applicable
- If any child included in your application is adopted, then relevant adoption papers will be required
- Evidence of dependency for any dependant child or children aged 18 years or over included in your application. You will need to demonstrate that any included child or children who are 18 years of age or over are financially dependant on you or your sponsor for his or her basic needs of food, shelter and clothing, and how long this support has been provided. Evidence may include bank statements, money transfers, rent receipts, education fee receipts etc.
You can also include documents generated by third parties/companies/businesses/friends or relatives that are addressed to you and your partner (such correspondence can be addressed to just you or your partner, although correspondence that are addressed to both you and your partner are better). Examples include:
- Bank statements
- Bills, invoices, receipts etc.
- Letters, invitations
- Flight tickets or receipts evidencing your joint holidays or travels
These documents show that you and your partner live together,and also evidence how long you have been living together. In my view, there is a difference between documents that are addressed to you both, and documents that are only addressed to one of you. I have seen case officers take the view that just providing documents that are addressed to you or your partner only is not sufficient. Their reasoning is that there isn’t enough evidence of your ‘shared life’.
So you should really look at everything that you ‘share’ and determine whether you can demonstrate this. Do you have your membership at the same gym? Do you attend the same church? Do you share any other hobbies, classes or activities? If these bodies or companies send you correspondence, ask whether they can send you documents in your joint names. Of course, some of these bodies and companies will be a lot more accommodating then others, but it never hurts to ask.
I would also include third party evidence of your travels/holidays and social activities under useful evidence. Showing consistent travel, vacations and social activities together is good evidence of your shared life and interests.
Regular communication and contact evidence
This category is evidence that you or your partner can directly generate. Examples include:
- Emails/letters to each other
- Social media interaction with each other
- Records of telephone conversations and messages
It is critical that you provide this type of evidence as it adds context, colour and life to your application. These documents also demonstrate several factors which your case officer is required to take into consideration such as the ‘social aspect of your relationship’.
But since this type of evidence is self generated, if you submit nothing but documents under this category, it is difficult for your case officer to confidently conclude that your relationship satisfies the relevant legal requirements. The risk of refusal is particularly high if you cannot provide any evidence in relation to the shared aspects of your lives, such as the financial commitments and obligations that you have together.
Planning your evidence
Now that you have an idea of the types of evidence that you are expected to provide, and the relative usefulness of the different types of evidence, I hope that this will assist you and your partner with planning out your application before you prepare and lodge it. It is a lot easier to prepare a properly evidenced application if you start to plan your application from the moment that you decide that you want to apply for a partner visa (i.e. give yourself as much time as possible to gather relevant and quality evidence, and preparing your supporting declarations).
If you are lacking strong forms of evidence, then you may want to consider delaying your application and taking steps towards organising better evidence in the meantime. For example, you can contact your household utility providers and see if you can change your accounts to joint accounts. You can apply the same principle to your insurance policy, gym membership etc. Sure, this may be a hassle, but showing this level of commitment and the sharing of various aspects of your lives will really make it easier for your case officer to conclude that your application satisfies the relevant partner visa and sponsorship requirements.
Preparing your statutory declarations
Yourself and your sponsor both need to prepare detailed supporting declarations, which explain various aspects of your relationship such as the development, social aspect, financial aspect etc. of your relationship. Please see guide for preparing your declarations, and detailed statutory declaration example.
The following are common questions in relation to preparing your statutory declarations:
|Can we prepare a joint declaration?||No because a statutory declaration is sworn and signed by one person only|
|Do we need to prepare two separate and different declarations for the same relationship history?||Yes|
|Can our declarations be the same or similar?||Yes but you shouldn’t really be completely copying and pasting each other’s declarations. Overlap and similarities are acceptable since your writing about the same relationship and history, but you still need to prepare two separate declarations written from your individual perspectives|
|My partner’s English isn’t very good – should he or she write his or her declaration in his or her native language and translate this?||This would be the most accurate way for the applicant or sponsor to provide the relevant information to the Department. We have had instances where the Department has accepted statutory declarations that were prepared in English for the visa applicant or sponsor, and this information was explained to the visa applicant or sponsor in their native language, before the visa applicant or sponsor arranged for swearing of the relevant statutory declaration.|
We recommend having your statutory declarations ready at the time that you lodge your applications, so that yourself and your sponsor have a clear understanding of your relationship history and information that you have provided to the Department.
Preparing your online application forms
You firstly need to create an Immiaccount with the Department’s website before you can access the online forms.
After you log into your account, use the following links:
- New application (top left)
- Stage 1 – Partner or Prospective Marriage Visa (300,309/100,820/801)
- With the sponsorship form (Sponsorship for a Partner to Migrate to Australia (300,309/100,820/801)), you prepare and lodge this after you pay for and lodge your partner visa. You need to lodge a valid partner visa before you can proceed with the online sponsorship form, as you need the Transaction Reference Number (TRN) from your partner visa application when you prepare the sponsorship form
Online visa form FAQ
|Form question||Information in relation to answer|
|Applicant’s Immediate Family Members section – I don’t have exact details for my parents and/or other family members such as dates of birth, or marriage date. Can I provide an approximate date based on best available information and recollection?||Yes this is fine. The same applies for the section asking for the sponsor’s family’s details.|
|Date committed relationship began AND Date applicant and sponsor committed to a shared life together to the exclusion of all others:||Your answers for these dates should be the same. You can both decide your own date for when this occurred based on your relationship history – this doesn’t necessarily need to be the date that you started living together/got married/got engaged etc.|
|Has the applicant lived separately and apart from the sponsor for any periods of time since committing to a shared life together to the exclusion of all others?||You are allowed to be temporarily living apart, as long as you intend to live together on a permanent basis in the future. If you are living apart, then you should provide the Department with an explanation in relation to why you are living apart on a temporary basis (due to visa issues, ability to work, temporary family/business obligations outside of Australia etc.), and when you will be living together on a permanent and long term basis.|
Department’s processing times
The Department’s processing time for both onshore and offshore partner visa applications are unfortunately very lengthy at the moment. The Department’s current processing times are approximately:
Onshore 820 temporary partner visa: 16 – 24 months or potentially longer depending on the complexity of your application
Offshore 309 temporary partner visa: 16 – 20 months or potentially longer depending on the complexity of your application
Permanent residency 801 or 100 partner visa: 16 – 20 months or potentially longer depending on the complexity of your application
Please note that the above information is only providing estimated processing time information based on our recent experience, and actual processing times will vary for each individual application. Generally speaking, more complicated applications which may have issues satisfying the relevant legal requirements may take the Department longer to assess and decide.
|Stream||75 per cent of applications processed||90 per cent of applications processed|
|820 – Temporary visa||17 months||25 months|
|801 – Permanent visa||15 months||22 months|
|Stream||75 per cent of applications processed||90 per cent of applications processed|
|309 – Provisional visa||13 months||18 months|
|100 – Permanent visa||18 months||24 months|
Last updated 19 June 2018 (for month ending 31 May 2018)
Uploading further evidence during processing
Given the Department’s very long processing times for all partner visa applications, it has now become increasingly important to continue to accumulate and organise documents of your on-going relationship and upload these to your visa application during the Department’s processing time.
Tips in relation to organising and uploading further documents of your relationship during the Department’s processing time:
- The amount of documents and further evidence that you need to organise and upload after lodgement does depend on the circumstances of your relationship, application and how much supporting evidence that you were able to provide at the time of lodgement
- If you only recently met your partner and got married shortly before lodging your visa application, then you and your sponsor would need to spend more time and make more of an effort post lodgement to ensure that you are continuing to accumulate strong and further evidence of your relationship, to remove/address any potential doubt about the genuineness of your marriage and relationship. The Department does seem to place a strong emphasis on long term joint financial commitments, so we suggest that you ensure that you arrange your financial affairs and accounts so that you can demonstrate this. Your supporting evidence may include:
- Maintain joint account where your salaries are paid directly into this account, and you both regularly use this account for your general living expenses
- Maintain a joint savings account, where you both regularly contribute to this savings account for your future use such as purchasing a property together. You don’t have to contribute equal amounts, as it is more important to show that you have both contributed regularly to this account over a reasonable period of time
- Arrange for regular international fund transfers to your partner’s account overseas if you are separated during the Department’s processing time. We suggest that you arrange for these regular transfers to show your on-going financial support to each other during your time apart. We recommend these transfers even if your partner that is receiving these funds does not need these funds, as it is just important to accumulate the on-going financial evidence. You can just save these funds overseas and bring these back to Australia after visa approval
- If you and your sponsor have clear and strong evidence of your long term relationship (e.g. a relationship of 2-3 years or longer, and child or children from your relationship if applicable), then you should have plenty of evidence of your long term relationship at the time of lodgement. You should still continue to accumulate evidence of your relationship during the Department’s processing time and upload these to your application, but such evidence should be less critical in the Department’s assessment and decision for your application. We suggest that for such long term relationships, you just need to accumulate further evidence of your:
- Joint financial ties and arrangements
- Household expenses and bills
- Education and expenses for your child or children if applicable
- Social invitations and photos of significant events such as weddings, Christmas, birthdays etc.
- If you lodged an offshore 309/100 partner visa application, then we suggest that you should organise trips to see each other during the Department’s processing time. Ideally, you should try and spend as much time as possible living together during the Department’s processing time. This may mean a visitor visa application, or if the visa applicant is not eligible for a visitor visa due to prior migration compliance issues and/or a current bar which prevents the grant of a visitor visa, then the sponsor should travel overseas and spend some time with the visa applicant
Responding to Department requests
If you have followed the steps in this guide, then generally speaking, the Department should have most of the information and documents that is needed to assess and decide your application.
You may still receive a Department request for further information and documents, for a number of different reasons, such as:
- If you need to complete your health examinations and/or upload your police clearances, or if your sponsor needs to provide his or her police clearances. If you receive such a request, then you shouldn’t really be concerned. You just need to complete the items requested by the Department and then follow the below instructions in relation to responding to your request via your Immiaccount.
- If the Department just wants updated and current information in relation to your relationship before deciding your application, then generally speaking, the Department will send you the following generic request information which can look rather daunting when you first look at this as the Department seems to be asking you to provide some of the same information that you previously provided already:
- If you receive such a request, then you should note:
- Receiving such a request doesn’t necessarily mean that your Department case officer has any issues with your application, as these requests are very common now days even if you have submitted comprehensive evidence of your relationship already
- You can upload recent relevant evidence of your relationship and organise this in response to the Department’s request, such as your recent joint account statements, household bills and expenses etc.
- We generally suggest preparing another statutory declaration to accompany the new information and documents that you upload, in which you should provide your case officer with an update in relation to the current and recent circumstances of your relationship and household, including the financial, social etc. aspects of your relationship and household (your declaration can be much briefer than your earlier declaration as you are just providing the Department with an update in relation to your current circumstances). You can also explain to your case officer how this is demonstrated by the new additional information and documents that you are uploading. This should help your case officer understand how and why your relationship satisfy the relevant legal requirements, rather than just leaving it to the case officer to assess and interpret your documents and information
- If the Department has particular concerns about your visa application, your sponsor and/or your relationship which you need to address, then these items will generally be stated under a heading called ‘Other requirements’. For example, the Department may ask you to provide:
- Evidence of contacts between you and sponsor while you are apart (if you lodged an offshore partner visa and if you are separated during the Department’s processing time)
The Department’s correspondence will confirm the deadline by which you need to respond. If you are in Australia, then generally speaking, you are given 28 days to provide the requested information and/or documents.
Please have particular attention to the date by which you need to respond to any Department request. If you need more time to collect the requested information and/or documents, then you should send a request asking for this extension at least 3-4 working days before the deadline by which you need to respond. Your case officer should grant this extension, however, whether you are granted an extension is still at the discretion of your case officer, who can deny your request.
Once you have collected all the relevant information and documents required in response to the Department’s request checklist, you can upload your new information and documents to your application via your Immiaccount. You can then use the ‘I confirm I have provided information as requested’ link to inform the Department that you have responded to their request. Once you have used this link in your Immiaccount, you do not need to take any further action, send emails or call to inform the Department.
Once you have responded to the Department’s request, we find that it may still be some time before your visa application is finalised and decided. Generally speaking, the Department may take another 2-6 months to decide and finalise your visa application, once you have responded to an earlier Department request.
The Department may also send further requests for information and documents if the Department believes that this is necessary before a decision can be made.
If the Department approves your application, then congratulations!
You will receive either a temporary visa (while you complete a wait period before you can lodge your permanent partner visa application, which is approximately two years after the date of lodgement of your initial application), or you can be granted a permanent residency partner visa directly (with 5 years of international travel facility) if your relationship satisfies the long-standing relationship requirements.
If the Department unfortunately refuses your visa partner application, then we may be able to assist with appealing to the Tribunal and/or preparing and lodging a new application with the Department, with updated and new additional documents and information which was previously not provided to the Department.
Can I appeal to the Tribunal if the Department refuses my application?
If unfortunately your application is refused by the Department, then you can appeal this refusal to the Administrative Appeals Tribunal. The role of the Tribunal is to review the Department’s decision for refusing your application (or cancelling your visa), and re-decide if the Department’s decision was correct. The relevant Tribunal Member will assess and decide if your application satisfies the ‘compelling reasons’ requirement. If your hearing and appeal is successful, then AAT can make a decision in your favour and decide that the Department’s decision is incorrect and send the matter back to the Department for reconsideration. If the matter is sent back to the Department for reconsideration, then generally speaking, the Department will grant the visa.
What are the advantages/disadvantages of lodging onshore in Australia?
- You can continue to accumulate more time living together and evidence of your relationship for the purposes for your visa application
- You may be able to obtain a bridging visa with unrestricted work rights that allows you to stay in Australia until your visa application is decided
- If the Department refuses your application, then you can appeal to the Tribunal as explained above, and continue to live in Australia as a bridging visa holder until the Tribunal decides your appeal
- You need to satisfy the discretionary ‘compelling reasons’ requirement which would not apply if you lodged your application when you are outside of Australia
- You may not be able to travel overseas as a bridging visa holder (you will not be able to travel if you lodged and you were unlawfully in Australia at the time of lodgement)
What are the advantages of lodging offshore outside Australia?
- You do not need to satisfy the ‘compelling reasons’ requirement. You would just need to satisfy the standard requirements for an offshore Subclass 309/100 partner visa
- You may be able to apply for a visitor visa during the Department’s processing time, and see if you can live with your sponsor in Australia as a visitor visa holder for some of the processing time
- You will not be able to work if you are living in Australia as a visitor visa holder. You would only be staying in Australia as a visitor visa holder as you cannot obtain a bridging visa for your partner where you lodged an offshore partner visa application
- It may be difficult to obtain an Australian visitor visa if the visa applicant has prior migration compliance issues
- It may be best for the sponsor to travel and see the applicant overseas, and perhaps even do this on multiple occasions to demonstrate your relationship if the applicant is unable to visit Australia during the Department’s processing time
- It may be more difficult to accumulate strong and convincing evidence of your relationship due to the separation of the visa applicant and sponsor. You may have to make extra efforts with demonstrating your relationship such as regularly making international transfers to each other to demonstrate the financial aspect of your relationship
Lodging offshore application as a Bridging visa B holder
One possible way to lodge another visa application while you a waiting for an AAT hearing or Court appeal is to apply while you are outside of Australia. If you are currently holding a Bridging visa A or B, then you may be to apply for a Bridging visa B which allows you to temporarily leave Australia. This may allow you to lodge an offshore partner visa application when you are outside of Australia as a Bridging visa B holder, and then return to Australia on your Bridging visa B and remain in Australia while you wait for your AAT hearing or Court appeal.
This would allow you to both avoid having to satisfy the Schedule 3 and ‘compelling reasons’ requirement, as well as stay in Australia with your sponsor so that you can accumulate further evidence for your relationship.
Please note that by lodging a new visa application while you are outside of Australia, you will not be able to get a bridging visa that is linked to this offshore partner visa application. Your right to return and stay in Australia as a Bridging visa B holder is based on your need to be in Australia for your AAT hearing or Court appeal. Hence if your AAT hearing or Court appeal is not successful, and your Bridging visa is set to expire on a certain date after the AAT or Court’s decision, then you cannot apply for a new bridging visa on the basis of your undecided offshore visa application.
Schedule 3 & Compelling reasons requirement
If you need to lodge a partner visa application in Australia and you currently hold any bridging visa or you currently do not hold any visa at all, then you will need to satisfy the Schedule 3 requirements for your partner visa application.
This generally occurs if you are in Australia waiting for a Tribunal appeal hearing or Court hearing in relation to your visa refusal or cancellation, or if you overstayed your prior visa and you are currently unlawfully in Australia.
In this situation, you are allowed to lodge a valid partner visa application while you are in Australia as long as your prior visa refusal was not a partner visa refusal.
Generally speaking, in order to satisfy the requirements under Schedule 3, you will need to demonstrate that there are ‘compelling reasons’ that affect the circumstances of your application (‘compelling reasons’ requirement). There are no specific circumstances or events defined under the law as ‘compelling reasons’. Whether the circumstances of your application are considered to be compelling is at the discretion of the case officer that assesses and decides your application.
If the Department sends you correspondence to address this requirement, then you likely will receive a request like the following example:
As stated in the above example of the Department’s correspondence, visa application and circumstances are considered on a case by case basis.
If you currently do not hold any visa and you are unlawfully in Australia, then the Department will also likely ask you to provide an explanation in relation to why you overstayed your last visa and became unlawful.
The Department’s current policy guidelines indicate that the existence of a genuine relationship and the hardship suffered from separation are not in themselves sufficient reasons to satisfy the compelling reasons requirement:
An example of where the circumstances may not be compelling to waive the Schedule 3 requirements may be where an applicant has remained unlawful for a number of years, made little or no effort to regularise their status and claims compelling circumstances on the basis of a long term relationship with their sponsoring partner and/or hardship caused by separation if they were to apply outside Australia for the visa.
With the intent of the waiver provisions in mind, it is generally reasonable to expect that compelling reasons to exercise the waiver provision exist where an applicant’s circumstances happened beyond their control. That is, circumstances beyond the applicant’s control had led them to become unlawful and/or prevented them from regularising their status through means other than the Partner visa application for which they seek the waiver.
For example, in the scenario given earlier, it is reasonable to accept that compelling circumstances exist to waive the Schedule 3 criteria if, for reasons beyond the applicant’s control – such as severe illness or incapacity – the applicant was prevented from regularising their status in the years they had been unlawful.
As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria. This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, whilst it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.
Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. This not only ensures fairness and equity to other applicants and discourages deliberate non-compliance, but also preserves the integrity of the Partner visa program in general and the waiver provisions in specific.
Matters that officers should take into consideration when assessing whether the applicant’s circumstances may be considered compelling include but are not limited to:
- any history of non-compliance by the applicant
- the length of time the applicant has been unlawful
- the reasons why the applicant became unlawful
- the reasons why the applicant did not seek to regularise their status sooner
- what steps, if any, the applicant has taken to regularise their status (other than applying for a Partner visa).
Will the Department approve my application?
The above policy guidelines essentially confirm that you need some ‘compelling reason’ that is beyond just your genuine relationship to satisfy this requirement, and ideally this circumstance should be one that is beyond the visa applicant’s control. Based on our experience with the Department’s assessment, we find that the following circumstances may satisfy the ‘compelling reasons’ requirement:
- Applicant and sponsor are looking after their Australian citizen child or children, where you can argue that the separation will adversely affect the Australian child or children, as well as requiring the sponsor alone to raise his or her child or children on a temporary basis for around 1-2 years and possibly longer given the Department’s processing times
- Applicant provides regular daily health care and household support for the sponsor, and/or other family members of the sponsor’s household
- Applicant is suffering severe illness or incapacity and is receiving treatment and support in Australia
You are allowed to rely on circumstances that occur after the lodgement of your visa application, as the compelling reason or a further compelling reason to satisfy this requirement. This includes events or circumstances that arise during the Department’s processing time, and the Tribunal’s processing time if you need to appeal. You are not limited to circumstances and facts that existed at or before the time of lodgement of your visa application.
Since the ‘compelling reasons’ requirement is assessed on a case by case basis, you can lodge an application and argue that any circumstance with a genuine relationship is compelling. However, the Department will generally refuse applications that are not consistent with their above guidelines.
Please also see our other partner visa articles
- Preparing your supporting declarations and the information that you should include in your supporting statutory declarations
- Information in relation to preparing Form 888 and detailed example answers
Other visa information
- Resident return visa – for current or former permanent residents or Australian citizens that need to apply for a new permanent residency visa
- Employer nomination scheme ENS 186 permanent residency visa
- Regional sponsored migration scheme RSMS 187 permanent residency visa
- State sponsored visas: New South Wales, Northern Territory, Queensland, Tasmania, Victoria, Western Australia