Skilled Visa
The Australian Partner visa allows the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen to live in Australia through a combined application for both the temporary and permanent stages. For applicants in Australia, this is the Subclass 820 (temporary) and Subclass 801 (permanent), and for applicants outside Australia, the Subclass 309 (provisional) and Subclass 100 (migrant) visas. Although lodged together as one combined application, the temporary/provisional stage is assessed and granted first, and the permanent stage is assessed later (usually around two years after lodgement). Applicants must demonstrate a genuine and ongoing relationship, usually live together or not be permanently separated, have an eligible sponsor, and meet health and character requirements.
Fundamental criteria for Partner visa
To apply for an Australian Partner visa, you must be in a genuine relationship with your partner who is Australian citizen, Australian permanent resident, or an eligible New Zealand citizen. You can apply as either married or de facto. If you are married, your marriage must be legally valid and you must be in a real, ongoing relationship (you cannot be permanently separated), If you apply as de facto, you usually need to show that you have lived together for at least 12 months before applying, If you and your partner have not been living together for 12 months, you may meet the de facto requirement by registering your relationship with the Births, Deaths and Marriages office in a state or territory that allows registration. Processing times vary between states (for example, NSW is usually faster and South Australia is slower), so you should register early and plan your application timeframe carefully.
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Our expert team will be at your side at every stage of your partner visa journey, from
understanding eligibility requirements and gathering evidence to submitting your application.
FAQs
The 309/100 visa is an offshore Partner visa, which means the applicant must be outside Australia when the application is lodged. The 820/801 visa is an onshore Partner visa, for applicants who are inside Australia at lodgement. While this sounds like a simple location difference, the 820/801 pathway is often more beneficial. Once we lodge an 820/801 for you, you are usually granted a Bridging Visa that lets you stay in Australia lawfully, work full time, and enrol in Medicare while your application is processed. The challenge for many applicants (especially those not from eVisitor-eligible countries) is obtaining a visitor visa to come to Australia first. An offshore Partner visa (subclass 309/100) can be an option if you have tried to obtain a visitor visa multiple times and been refused, or if your partner (the applicant) has work commitments or other responsibilities to manage before moving to Australia. Lodging the Partner visa offshore allows them to continue working and organising their affairs in their home country while their application is being processed.
From our years of practice, we have seen this situation many times. The short answer is yes, you still can.
As per the Migration PAM, It states that it is possible for one party to satisfy the definition of spouse or de facto partner under Migration Act even if they are still legally married to someone else, as long as they can convincingly demonstrate to the department that they are permanently separated from his/her former relationship.
Yes. Under the migration law, you can still qualify as a spouse or de facto partner even if you are not currently living together, as long as you are not separated on a permanent basis and your relationship is genuine and ongoing. Religious or cultural reasons for living apart are recognised as valid, and both the Department and the Tribunal/Courts have accepted such arrangements in past cases where strong evidence was provided. You must be able to show a clear intention and plan to live together in the future, along with supporting evidence such as regular communication, visits, financial support, family and community recognition of your relationship.
If you have had a visa refusal while you were in Australia and you no longer hold a substantive visa, you may be subject to the section 48 (s48) bar, which restricts you to applying only for certain prescribed visas while you remain in Australia.
Good news: an onshore Partner visa (subclass 820/801) is one of the visa classes prescribed under regulation 2.12, so an s48-barred applicant can generally lodge it in Australia.
The catch: Schedule 3 (the “28-day” issue)
Even if the Partner visa is available under s48, many applicants in this situation will also be assessed against Schedule 3 of the Migration Regulations. One key Schedule 3 timing criterion (often referred to as the “28-day rule”) is linked to how long it has been since you last held a substantive visa.
If you cannot meet the relevant Schedule 3 criteria, the Department can still proceed only if a waiver is granted, and the legal test is whether there are “compelling reasons” not to apply Schedule 3 to you (this is a high threshold and must be argued carefully with evidence).
A common strategy: consider an offshore Partner visa to avoid Schedule 3
Where Schedule 3 is likely to be a major risk, an alternative approach may be to depart Australia and lodge an offshore Partner visa (subclass 309/100). You would generally need to be outside Australia at the time of application.
However, we can still tackle this situation with a better solution. Since you are holding a Bridging Visa A, we can apply for a Bridging Visa B for you. Once you travel outside Australia, we can lodge an offshore Partner visa to avoid the need to rely on compelling and compassionate reasons. You can then travel back to Australia on the Bridging Visa B. Also, because the offshore Partner visa can be granted either onshore or offshore, we can use a bridging visa switch strategy linked to your offshore Partner visa. This means that even if your ART matter is finalised, you may still be able to remain in Australia while waiting for the Partner visa outcome.
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