Partner visas in Australia

How to obtain a partner visa? Perhaps you and your partner have decided that you want to spend your life together in Australia, but how to do so under Australian immigration laws?

Under the Partner Visa Stream, an Australian spouse or de facto partner can sponsor an applicant. The sponsor must either be an Australian citizen, Australian permanent resident or an eligible New Zealand citizen, aged over 18 years old.

The Migration Act and Regulations regulates who may be able to enter Australia as well as the qualifications required. Below are the 3 types of visa options couples can consider:

• Partner Visa Offshore (Subclasses 309 and 100)
• Partner Visa Onshore (Subclasses 820 and 801)
• Prospective Marriage Visa (Subclass 300)

You need to ensure that you fulfil the necessary requirements for a successful outcome in your application. This article explores the different types of partner visas and their requirements.

Partner Visa Offshore ( 309 and 100)

Partner (Provisional) Visa (309) means an applicant can apply for a partner visa in Australia even if they are residing outside Australia and only if the applicant is married or in de facto relationship with a permanent resident of Australia, an Australian citizen, or an eligible citizen of New Zealand.

The Subclass 309 visa allows the applicant to:

• Enter and live in Australia until the DHA makes a decision on the permanent partner visa,
• Study and work in Australia,
• Enrol themselves in Australia's health care program, and
• Travel to and from Australia.

The visa type is temporary, but parties can convert this to a permanent resident visa through the Partner (Migrant) Visa (100). The Subclass 100 visa is a permanent visa. Parties can apply for this no sooner than 2 years after they receive grant of Subclass 309 temporary visa.

To be eligible, you:

• Will need to already have the Subclass 309 temporary visa,
• Must not have had a visa cancelled or an application refused, and
• Must still be in a relationship with the person who is sponsoring you.

Once the applicant obtains a Subclass 100 visa, they become eligible to:

• Live in Australia,
• Study and work in Australia,
• Apply for Australian citizenship, if eligible, and
• Sponsor relatives for a permanent resident visa in Australia.

Partner Visa Onshore ( 820 and 801)

If the applicant is making an application from Australia, the onshore visas are applicable. A person who is in Australia will be eligible to apply for an Onshore Temporary Visa (820) if they are married or are in a de facto relationship with an Australian citizen, a permanent Australian resident or an eligible New Zealand citizen.

The applicant must also not have had a visa cancelled or an application refused and not hold certain regional visas. An applicant will be granted a bridging visa while waiting for the processing of the Subclass 820 temporary partner visa.

Once an applicant obtains a Subclass 820 Visa, they would have the same benefits as those on a Subclass 309 Visa. Once the applicant manages to get the Onshore Permanent Visa (801), they become eligible to:

• Stay in Australia independently,
• Study and also work in Australia,
• Apply for Australian citizenship if deemed eligible, and
• Sponsor relatives for permanent residency in Australia

Prospective Marriage Visa ( 300)

Another type of partner visa is the Prospective Marriage Visa, popularly known as the "Australian Fiancée Visa". This Visa allows your fiancée to reside with you in Australia. Such visa holders are allowed to stay in Australia for a period of 9 months and can have their visas amended after getting married.

The sponsor would need to have Australian citizenship, a permanent Australian residency status, or be an eligible New Zealand citizen. The fiancée would need to pass a character and health clearance. Both must be 18 years of age or older and be legally allowed to marry.

It is crucial to note that the law requires you both to have met personally. Hence, if you are in an online relationship, the requirement for the visa is not met.

Once approved, the fiancée will be entitled to the following privileges:

• The ability to enter Australia prior to the marriage,
• Travel in and out of Australia mu ltiple times within the allowed 9-month period of stay,
• Work legally in Australia,
• Apply for a Spouse Visa after registering the marriage, and
• Study in Australia (without entitlement to government funding).

Requirements for Partner Visa

Specific requirements for each visa may vary, but generally speaking, having no debt to the Australian government, health and character requirements, and most importantly, relationship requirements have to be met.

Married applicants

You are a married applicant if your marriage is valid under Australian law and:

• you have a mutual commitment with your spouse to the exclusion of all others,
• your relationship is genuine and continuing,
• you either live together or don't live permanently apart, and
• you are not related by family.

De facto partners

To be a de facto partner, you must be in a de facto relationship. Under the Family Law Act 1975, you and your partner are in a de facto relationship if:

• you are not legally married to each other,
• you have a mutual commitment with your de facto partner to the exclusion of all others,
• you have a relationship as a couple who are living together on a " genuine domestic basis", and
• you are not related by family.

As a general rule, you must be in a de facto relationship for at least 12 months immediately before applying for a visa. Time spent dating or in an online relationship might not count.

However, the 12-month requirement can be waived if the applicant shows compelling and compassionate circumstances for the grant of the visa. The 12-month requirement also will not apply if:

• your partner holds or held a permanent humanitarian visa,
• you are in a de facto relationship with a partner who is an applicant for a permanent humanitarian visa, or
• you have registered your relationship with an Australian authority such as a registry of births, deaths and marriages.

Proving the Relationship

You will need to produce various documents to prove your genuine relationship and shared life. Below are factors that are considered in the application for the visas. Take note that this list is not exhaustive.

• As to finances. Documents that show that both parties have contributed financially to the relationship and have shared financial goals.
• As to household. How your household works on a daily basis.
• As to social matters. How you are seen as a couple by family and friends,
• As to commitment. Proof that you know about your partner's background and have combined your personal lives,
• As to de facto relationships. Your relationship existed for at least 12 months prior to the application submission date, except under the exceptions previously stated.
• As to a genuine intention to marry. For the Prospective Marriage Visa, you must have evidence of having a relationship to show your sincere intention to get married. It can be in the form of photos, email exchanges, money transfer receipts, and flight tickets.

Seeking Legal Advice

JB Solicitors has a leading team of immigration lawyers that can look at all visa options and advise you on the best route you could take based on your personal circumstances. We can help with your migration plans and work with you on the required documents to ensure that your application gets approved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.