820 Partner Visa

How do I achieve permanent residency with the partner visa?

The Australian Partner Visa allows spouses or de facto partners of Australian citizens, permanent residents, or eligible New Zealand citizens to live in Australia. The application process generally involves two stages:

1. Temporary Partner Visa (Subclass 820): This is the first stage and allows you to stay in Australia temporarily.
2. Permanent Partner Visa (Subclass 801): You can typically apply for permanent residency 2 years from the date you first submit your partner visa. For example, you may submit a partner visa in Australia (subclass 820 visa) on 01 January 2023 and you will be eligible to apply for the permanent partner visa (subclass 801 visa) by 01 January 2025, assuming your subclass 820 visa was granted.

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What are the critical requirements?

When applying for a partner visa, the Department of Home Affairs needs to see that your relationship is "genuine and continuing". This means showing you're committed to a shared life, exclusive of others, and either living together or not permanently separated. Having a genuine relationship doesn't automatically mean you'll meet the legal requirements. Each relationship is unique, so there's no one-size-fits-all approach to proving your case.

Key Aspects to Demonstrate

1. Financial Aspects

• Show how you manage finances together
• Examples: Joint bank accounts, shared expenses, financial support
• Note: Separate finances don't disqualify you, but may require extra explanation

2. Social Aspects

• Demonstrate your life together in social settings
• Examples: Social media posts, photos of events, travel records
• Tip: Keep a scrapbook or journal if you're not active on social media

3. Household Aspects

• Explain how you share household responsibilities
• Describe your day-to-day life at home as a couple

4. Commitment to the Future

• Show long-term plans involving each other
• Examples: Marriage plans, wills, superannuation beneficiaries

Handling Periods of Temporary Separation

If you've lived apart temporarily:

• Prove the separation was temporary
• Show how you maintained your relationship during this time
• Provide evidence of regular communication

We go into further detail on the above in this article too. Every couple's story is unique. Your task is to show how your relationship meets the legal criteria. If you're unsure about your evidence or have complex circumstances, consider seeking advice from a registered migration agent or lawyer. Remember, it's not just about having a genuine relationship – it's about effectively demonstrating it to meet visa requirements.

The 12-month minimum cohabitation requirement

If you are in a de facto relationship, you are required to prove to the Department that your relationship has continued for at least 12 months at the time of application.

The law does state that if you are legally married overseas or in Australia at the time of application in a manner that is consistent with the Australian laws, the requirement could be 'waived' in a sense that your partner visa will not be refused on the grounds of not satisfying this requirement.

If your relationship is registered with an Australian state/territory by the time of visa decision, the 12-month cohabitation requirement can also be waived.

Registration with the following Australian state/territories may allow you to bypass the 12-month cohabitation requirement:

1. Victoria
2. Tasmania
3. New South Wales
4. Australian Capital Territory
5. Queensland

Each state has their own requirements for registration of relationship. Some require that at least one of the partners usually resides in the state that the relationship is being registered in. If you live in Western Australia or the Northern Territory, you cannot register your relationship to bypass the 12-month cohabitation requirement for immigration purposes. Some couples may choose to marry in these circumstances.

When you are able to successfully register your relationship with the relevant state or territory in Australia, bear in mind that there are still additional hoops you will need to jump through to prove your relationship is genuine and refusal-proof your partner visa application. A relationship certificate alone cannot suffice as evidence to ensure a grant of your partner visa.

Some of the less common ways where this 12-month cohabitation requirement could be waived are: if compelling and compassionate circumstances exist, or your relationship was known to the Department in a previously granted humanitarian visa.

Examples of compelling and compassionate circumstances include but are not limited to where:

• the visa applicant has a dependent child from the relationship;
• de facto relationships are illegal in the country where the visa applicant or both the visa applicant and Australian partner sponsor reside.

Long-term partner relationship - immediate PR grant?

If you and your partner are in a long-term partner relationship in the eyes of the Department and meet the evidentiary threshold, you may be eligible for a simultaneous grant of both the first-stage and the second-stage visas.

A "long-term" partner relationship is defined in the Migration Regulations as a spousal or de facto relationship that has been continuing for at least 3 years, or 2 years (if you have a dependent child of the relationship). A child of the relationship is typically the biological child of both the visa applicant and the sponsor. A step-child who is not a biological child is typically not regarded as a "dependent child of the relationship" for the purposes of meeting these requirements, however a child born through surrogacy or adopted by both the visa applicant and the sponsor may be considered as a "dependent child of the relationship".

This is not automatically considered by the case officer. Relevant supporting evidence and formal written request needs to be provided to the Department. Get advice from a registered migration agent before lodging your partner visa application to see if you may qualify for special consideration.

8503 "No Further Stay" Condition and Waiver

Have a look at your visa grant letter for your currently valid Australian visa and ensure that you do not have an "8503 No Further Stay" Condition attached to your visa. If you do, then you will not be able to apply for an onshore partner visa unless you are able to waive the "8503 No Further Stay Condition. Typically, the best step forward is to apply for an offshore partner visa or a prospective marriage visa, depending on which one you satisfy the requirements for.

Acquiring an "8503 No Further Stay" Condition Waiver is by no means straightforward. Generally, the Department advises that significant changes must have occurred since you were granted with the visa (which carried the 8503 condition), which were beyond your control, and these changes must constitute "compelling and compassionate" circumstances. "Compelling and compassionate" circumstances, as you might imagine, are not defined in legislation. It is hence considered entirely on a case-by-case basis.

If you have an "8503 No Further Stay" Condition on your visa, you definitely should seek advice from a registered migration agent in relation to your particular circumstances.

Temporarily living apart?

Long-distance relationships are difficult most couples. The Department sets out additional requirements for couples who have spent time away from living with their partner. Where your physical separation is temporary, it is often possible to show through phone and electronic communication records covering the financial, social, household and commitment aspects of your relationship.

Permanent residency?

Following the grant of a the first-stage partner visa (subclass 820), you will be invited to apply for a second-stage partner visa (subclass 801) around 2 years after the grant of your first-stage partner visa. You may not need to apply for your partner visa in two stages if you could be considered by the Department of Home Affairs as being in a "long-term" partner relationship. A long-term relationship typically means either 3 years of cohabitation if you do not have a child together, or 2 years of cohabitation if you do.

Witness Statements

You will typically need two (2) Form 888s to support your partner visa application. A few pointers:

1. It's beneficial to have multiple Form 888s from a variety of people who know the couple in different capacities (e.g., family, friends, colleagues).
2. Ensure that the information provided is consistent with other evidence and statements given in the visa application.
3. Being detailed and specific in observations and statements will provide a stronger case than vague or general comments.

Always ensure that the information provided on the form is truthful and accurate. Providing false or misleading information can lead to serious consequences both for the declarant and the visa applicant.

Length of visa

Subclass 820: When your subclass 820 visa is granted, the grant letter will typically show the length of stay to be "unlimited" - however please do not be mistaken, as this just means the department is waiting to assess the second-stage subclass 801 (permanent visa). Generally you will be on the subclass 820 visa for approximately 1.5 years, but this period may be shorter or longer depending on when the subclass 801 visa is assessed.

Subclass 801: When your subclass 801 visa is granted, you will be a permanent resident of Australia. However, your re-entry to Australia will only be valid for 5 years. If you intend to travel internationally and return to Australia after the 5 years are up, you will need to apply for and be granted a resident return visa (subclass 155 visa) before you leave Australia.

Planning ahead

When preparing a Subclass 820 visa or Subclass 309 Partner Visa application, applicants can encounter several challenges:

Common issues

Duration of relationship

We have come across some applicants who have only been living together for a few weeks or a few months, and may find it challenging to gather sufficient evidence across the 4 aspects of their relationship.

Incomplete or Incorrect Documentation or Information

Mistakes or omissions in the application can result in delays, requests for more information, or even visa refusals.

Long processing times

Current processing times are approximately 12-26 months, subjected to change from month to month.

De facto relationship

Some applicants might mistakenly assume their relationship qualifies as de facto under Australian immigration law when it might not meet the strict definition. To satisfy this definition, the applicant must show evidence supporting an intertwined life between themselves and the sponsor (see "4 aspects of a genuine and continuing relationship")

Less common issues

Complex visa history

If you've had a visa refusal or cancellation in the past, it's crucial to understand why this happened. For Partner Visas, the Department of Home Affairs will scrutinize your past visa history, especially if there were issues related to character, false information, or non-compliance with visa conditions. You'll need to address these issues directly in your application.

⚠️Tip: Provide a detailed explanation and supporting documents that show how your situation has changed or why those issues are no longer relevant.

Section 48 bar

If you are in Australia and have had a visa refused or cancelled since your last entry, you may be subject to a Section 48 bar, which limits your ability to apply for certain visas while in Australia. However, Partner Visas are one of the exemptions to this rule, meaning you can still apply onshore.

This does not mean you will receive necessarily receive a visa grant when you have been previously refused a visa. If you were holding a substantive visa (such as a working holiday visa, student visa or visitor visa) at the time of the visa refusal, you're most likely safe to proceed with the partner visa application.

If you were holding a bridging visa or were unlawful at the time of the visa refusal or cancellation, you will need to satisfy schedule 3 criteria i.e. you must show that you must not have become an unlawful non-citizen (i.e., someone without a valid visa) or a non-substantive visa holder (i.e. bridging visa holder) for more than 28 days at any point since last entering Australia, that circumstances beyond your control occurred to cause you to be that way, unless compelling circumstances apply. We discuss the schedule 3 waiver application in this blog article.

Health and character issues

Applicants must meet health and character requirements. Medical conditions or certain criminal records might lead to visa refusal. Police checks from every country where the applicant has lived for a total of 12 months or more in the past ten years are required.

Sponsorship

Your Aussie partner must sponsor you and meet character requirements. Be careful here – certain past offenses can disqualify someone from sponsoring. You must be in Australia when you apply and when the visa is granted, which can get tricky if you need to travel. Ideally, you should hold a substantive visa when applying. If not, you'll need to tackle the dreaded Schedule 3 criteria (we get to that hornets' nest in this blog article).

Here's a breakdown of the common issues with sponsorship.

Sponsorship limitations (1) - previous sponsorships

Sponsors who have previously sponsored partners may be subject to limitations on further sponsorships.

Sponsors must meet the following requirements:

1. A sponsor must not have sponsored more than two other persons as a spouse, de facto partner, or prospective spouse.
2. There must be at least 5 years between sponsorships.
3. If the sponsor was themselves sponsored as a spouse, de facto partner, or prospective spouse, at least 5 years must have passed since their own visa application.

Otherwise, a sponsorship limitation will apply and the partner visa application fails. The Minister has discretion to waive these requirements if there are compelling circumstances affecting the sponsor.

What qualifies as compelling is highly subjective, and ultimately up to the discretion of the case delegate. Each case is unique, and objective facts should be presented to the application in a systematic manner. When seeking a waiver for an additional sponsorship under these circumstances, the visa applicant and sponsor should provide thorough and detailed explanations, along with relevant supporting documentation.

How do we calculate the 5-year period for the purposes of checking if a sponsorship limitation applies?

The 5-year period is calculated from the date of making the first visa application to the date of approval/refusal of the current sponsorship. Specifically:

1. If a sponsor has previously sponsored another partner, the 5-year period is calculated from the date on which the first visa application (300 or 820 or 309 visa) was made to the date of approval/refusal of the current sponsorship.
2. If the sponsor has been sponsored themselves, the 5-year period is calculated from the date the sponsor's own visa application was made to the date of approval/refusal of the current sponsorship.

The key points are:

• The start date is when the previous visa application was lodged, not when it was granted.
• The end date is when the current sponsorship is decided, not when the current application is lodged.

Now, let's look at some examples:

Example 1: Multiple Sponsorships

John, an Australian citizen, sponsored Sarah for a partner visa in 2010. The relationship ended, and John sponsored Maria for a partner visa in 2016. Now, in 2023, John wants to sponsor Sophia.

Analysis: John can sponsor Sophia because:

• He has only sponsored two people previously (within the limit).
• More than 5 years have passed since his last sponsorship (2016 to 2023).

Example 2: Recent Sponsorship

Emma, a permanent resident, sponsored Tom for a partner visa in 2020. Their relationship ended, and Emma wants to sponsor Alex in 2023.

Analysis: Emma cannot sponsor Alex yet unless compelling circumstances affecting the sponsor apply because:

• Less than 5 years have passed since her last sponsorship.
• She would need to wait until 2025 to be eligible to sponsor again.

Example 3: Previously Sponsored Person

Michael was granted a partner visa in 2019 after being sponsored by his Australian partner. Their relationship ended, and Michael, now a permanent resident, wants to sponsor Lisa in 2022.

Analysis: Michael cannot sponsor Lisa yet because:

• Less than 5 years have passed since he was granted his own partner visa.
• He would need to wait until 2024 to be eligible to sponsor.

Example 4: Compelling Circumstances

Jake sponsored his first partner in 2015 and a second partner in 2021. In 2023, he meets his new partner Meem, who is from a war-torn country and has their Australian child with a life-threatening condition requiring treatment only available in Australia.

Analysis: While Jake has reached his sponsorship limit and less than 5 years have passed since his last sponsorship, he could argue compelling circumstances due to Meem and his Australian child's situation. The Minister might consider waiving the limitations.

Example 5: Calculating the 5-year Period

David sponsored his first partner for a visa application lodged on 1 July 2015. The visa was granted on 1 July 2016. David now wants to sponsor a new partner and lodges a sponsorship application on 1 June 2020.

Analysis: The 5-year period is calculated from the date of the first visa application (1 July 2015), instead of the grant date. The Department would assess David's eligibility to sponsor when deciding on his sponsorship, which might be several months after the June 2020 lodgement. If the decision is made after 1 July 2020, David would be eligible to sponsor again.

Preparing a waiver application - compelling circumstances affecting the sponsor

Waiver of the above restrictions on sponsorship period and numbers is possible in the event there are compelling circumstances affecting the sponsor.

The sponsor must provide detailed evidence and submissions to demonstrate compelling circumstances that justify waiving the limitations.

Common compelling circumstances that may justify a waiver include:

1. The sponsor and applicant have a child together, or there is a dependent child
2. The previous spouse/partner of the sponsor died
3. The previous spouse abandoned the sponsor and there are children requiring care and support
4. The new relationship is longstanding (e.g. over 2 years)

The Department will assess all aspects of the sponsor's circumstances to determine if they are sufficiently compelling to warrant a waiver. Factors considered include:

1. The nature and extent of hardship if the sponsorship is not approved
2. The sponsor's ties to Australia and impact if they had to leave to maintain the relationship overseas
3. The genuineness and length of the current relationship
4. Any special/compassionate circumstances

The onus is on the sponsor to provide strong evidence to demonstrate compelling circumstances. Simply having a genuine relationship is not enough on its own.

If seeking a waiver of the 5-year limitation between sponsorships, the sponsor should explain:

1. Why they are seeking to sponsor again within 5 years
2. What has changed in their circumstances
3. Why this sponsorship should be approved as an exception

For waivers of the 2-partner limit, the sponsor needs to comprehensively explain the circumstances of previous relationships/sponsorships and why an additional sponsorship is justified.

The decision-maker has discretion to determine if the circumstances presented are sufficiently compelling to justify waiving the limitations. There is no exhaustive list of what constitutes compelling circumstances. Please also note that these relate specifically to the sponsorship limitation waiver. If you need to prove compelling and compassionate circumstances as a visa applicant, we discuss it in detail in this blog post.

Key Points for Waiver Requests:

1. Provide extensive supporting evidence
2. Focus on demonstrating hardship and exceptional circumstances
3. Explain in detail why the limitations should not apply in this case
4. Address all relevant factors - don't just focus on the current relationship
5. Consider obtaining professional assistance to prepare comprehensive submissions

Sponsorship limitations (2) - previous criminal history

There are also character requirements for sponsors, including disclosure of any criminal records. If an Australian sponsor for a partner visa has a criminal history, it can impact their ability to sponsor their partner. However, there are steps they can take to address this issue and potentially waive the sponsorship limitation.

The sponsor should fully disclose their criminal history in the sponsorship application. Concealing information can lead to a visa refusal or cancellation.

Preparing a waiver application - previous criminal history

The sponsor can provide context for their criminal history, explaining the circumstances, how long ago the offenses occurred, and any mitigating factors. Including character references from respected community members or professionals can also be beneficial.

Demonstrating rehabilitation since the time of the offenses is crucial. This can include undertaking counseling or rehabilitation programs, abstaining from substances (if related to the offenses), and engaging in community service or other positive activities.

Other complications & considerations

Previous de facto relationships and traditional marriages

Whilst many de facto relationships would not have come with a certificate, it is still essential for you to declare any past de facto relationships. For others that have obtained a certificate with a previous partner, it is essential that they ensure the cessation of the previous relationship is reported to the authorities.

One of our clients, who is now in a new de facto relationship with her current partner, found out through a consultation with us that she had forgotten to dissolve another de facto relationship years ago with an ex-partner! This situation can prove to be slightly tricky if your visa is running out and you have not lived together with your current partner for 12 months yet.

Traditional marriages

Previous traditional marriages may also add complication to your prospective marriage visa or partner visa process. Even though some traditional marriages may not be recognised as legal under Australian law, others may actually be considered legal here if it satisfied the relevant requirements of a legal marriage under the Australian Marriage Act. It is worthwhile seeking legal advice if you have concerns about the status of any previous relationships of yours or your partner's affecting your current partner visa application.

Changes in circumstances

Marriage breakup / relationship breakdown/death of sponsor

Generally, the breakdown of the relationship can lead to the refusal of the visa application. The partner visa is granted based on the genuineness and continuity of the relationship. If the relationship ceases to exist, the fundamental basis for the visa is no longer valid. The visa applicant is obligated to inform the Department of Home Affairs as soon as possible if the relationship ends. Failure to notify the Department of Home Affairs can have negative implications for future visa applications.

There may be scope for the partner visa to be granted in the following circumstances:

1. If there are children involved, especially children of the relationship or children being cared for by the couple, their welfare is taken into consideration.
2. If the relationship breakdown is due to family violence during the relationship, the applicant may still be eligible for the partner visa under certain circumstances. The applicant would need to provide evidence of the family violence during the span of the relationship.
3. In cases where the sponsoring partner passes away, but the relationship was genuine and continuing until the sponsor's death, the applicant may still be eligible for permanent residency.

How good is your evidence in the eyes of the Department?

The both of you will know your relationship better than anyone else. The challenge is with proving to Departmental case officers who do not know the both of you or your relationship personally "on paper".

The Migration Act 1958 and Migration Regulations 1994 are the two critical legislations that case officers must refer to when making a decision on your partner visa application. All evidence and answers to the forms that you provide must satisfy requirements of the legislations.

One type of evidence that you provide would be most helpful if other types of evidence can corroborate with the former type of evidence. For example, when you are proving that you and your partner had a wedding ceremony, your can provide photos of the ceremony itself.

Case officers may also look at payment for the venue (if applicable), wedding invitations issued to friends and family, and statements from your witnesses who have attended the ceremony that the ceremony did take place. Marriage or relationship registration certificate is also one obvious piece of evidence, but as I'd always like to emphasise: evidencing is much more than providing a certificate.

Why do onshore partner visa applications get refused?

Many couples set out on the partner visa journey thinking as long as their relationship is genuine in their eyes, that their evidence will surely prove that.

Evidencing your relationship can be challenging. More people have their visas refused due to inconsistency of information than having insufficient evidence provided.

We find that most people tend to overlook some of the following:

1. inconsistent description of relationship between the visa applicant and Australian partner sponsor in statutory declarations
2. mistakes in dates or facts in witness statements that do not align with evidence presented by the couple
3. inconsistent information submitted in application forms and evidence
4. inconsistent declarations or information in visa applicant's previously submitted visa applications or incoming passenger cards

Any inconsistency can potentially trigger the application of Public Interest Criterion 4020 within the migration regulations, which mandates refusal of visa application or even cancellation of visa (of the Australian partner sponsor's visa).

So check your application carefully over and over again! Even if you have engaged a registered migration agent or lawyer to look after your application for you, the responsibility still lies with you to ensure the information that you have provided to your agent or lawyer is 100% accurate.

What are my chances?

Have a look at the following quick list for you to examine whether your relationship has a good chance of meeting the requirements:

Make sure firstly that your visa does not have an "8503 No Further Stay" condition attached.

It will also be helpful if you and your partner can show that you:

1. Have a certain level of contact and know each other well
2. Your family and friends are aware of your relationship
3. See the relationship as a long-term one
4. Pool your financial arrangements
5. Have lived together for at least 12 months
6. Satisfy the relevant character and health requirements

If you and your partner are not able to show one or more of the above, it does not automatically mean that the partner visa application is out of the question.

Both the applicant and sponsor must also meet independent character requirements. The applicant must also meet health requirements.

To check your eligibility requirements in detail and find our your chances of receiving a visa grant, we recommend you seek tailored advice from an experienced registered migration agent who regularly checks against the latest immigration policies and legislative provisions.

How much does a partner visa cost?

The visa application charge for the main visa applicant is $9095.

Dependent child over 18 incurs an additional visa application charge of $4550.

Dependent child under 18 incurs an additional visa application charge of $2280​.

Note that even though this application charge is for a combined subclass 820/801 visa application, you will still be expected to submit further application forms and updated evidence once you qualify for your second-stage subclass 801 partner visa if you are deemed to not have been in a long-term relationship.

Restrictions onsubclass 491 and 494 holders

If you hold a subclass 491 or 494 visa, you will not be allowed to apply for an onshore subclass 820/801 partner visa application until three years have passed since your last 491 or 494 visa grant.

The content on this page does not constitute legal or immigration advice. Your circumstances are unique and you should seek legal advice for information that is specific to your situation. Please book a strategy session here or email our friendly staff at info@kinmigration.com.au to book.