1. Onshore vs. Offshore Partner Visa Applications (Subclass 820/801 and Subclass 309/100)

Onshore Applications (Subclass 820/801)

The onshore Partner Visa allows applicants to apply while in Australia. This pathway consists of two stages:

• Temporary Visa (Subclass 820): This is a temporary visa that grants the applicant the right to stay in Australia until their permanent visa is processed.
• Permanent Visa (Subclass 801): This is granted after a two-year waiting period (calculated from the date of the initial application), provided the applicant still meets the criteria and has maintained a genuine relationship with the sponsor.

Offshore Applications (Subclass 309/100)

The offshore Partner Visa allows applicants to apply while outside of Australia. Similar to the onshore process, it includes:

• Temporary Visa (Subclass 309): This visa allows the applicant to enter and remain in Australia while awaiting their permanent visa decision.
• Permanent Visa (Subclass 100): Granted after a two-year waiting period, assuming the relationship remains genuine and ongoing.

2. Criteria for Partner Visas

For both onshore and offshore Partner Visa applications, the main eligibility criteria are as follows:

• Genuine Relationship Requirement: Applicants must prove they are in a genuine, committed relationship with their sponsor, which must be either a marriage or a de facto relationship.
  
  • Married Couples: The marriage must be valid under Australian law.
  • De Facto Couples: The couple must have been in a de facto relationship for at least 12 months before applying, unless exempt (such as in cases where they have a child together or if registration is allowed in their state/territory).
• Health and Character Requirements: Both applicants must undergo health checks and police checks as part of the application process.

3. Sponsorship Requirements

The sponsor must be:

• An Australian citizen, permanent resident, or eligible New Zealand citizen.
• Able to meet specific obligations, including financial and emotional support to the applicant during their initial settlement period in Australia.
• Free from certain sponsorship limitations, such as a recent history of sponsoring other partners (generally limited to sponsoring two partners in a lifetime, with at least five years between sponsorships). A waiver may be possible in exceptional circumstances.

Limitations on Sponsorship

• Sponsors with prior convictions for certain criminal offences (particularly those involving violence or sexual offences) may be barred or subject to strict scrutiny.
• If the sponsor has sponsored a previous partner within the last five years, they may be ineligible to sponsor another unless special circumstances apply.

4. Onshore Applications: Substantive Visa vs. Non-Substantive Visa Holders

For onshore Partner Visa applications, the applicant’s visa status significantly affects the application process.

Applications by Substantive Visa Holders

A substantive visa is any visa that is not a bridging, criminal justice, or enforcement visa (e.g., a student visa or visitor visa). Applicants holding a substantive visa can generally apply for an onshore Partner Visa without facing additional hurdles.

When applying onshore while holding a substantive visa, applicants may also be eligible for a Bridging Visa A (BVA), which allows them to stay in Australia while their Partner Visa is processed. They can apply for work rights and Medicare benefits while on the BVA.

Applications by Non-Substantive Visa Holders (Bridging Visa Holders or Unlawful Non-Citizens)

If an applicant does not hold a substantive visa (e.g., they are on a Bridging Visa or have overstayed their previous visa), additional conditions apply under Schedule 3 of the Migration Regulations. These conditions are intended to discourage non-compliance with visa conditions and include:

• Compelling Circumstances: Applicants must demonstrate compelling reasons to waive the Schedule 3 requirements, such as family hardship or exceptional personal circumstances.
• Bridging Visa Eligibility: They may be granted a Bridging Visa E (BVE), which comes with more limited work rights and conditions compared to the BVA.

If Schedule 3 conditions are not waived, an applicant who was unlawfully present in Australia may be ineligible for the onshore Partner Visa and may need to apply offshore instead.

5. Relationship Evidentiary Requirements

To satisfy the genuine relationship requirement, both onshore and offshore applicants must submit evidence of their relationship across four primary domains:

• Financial Aspects: Evidence of shared financial responsibilities and interdependence.
• Social Aspects: Documentation demonstrating social acknowledgment of the relationship, such as joint social events, mutual friends, or family relationships.
• Household Aspects: Evidence showing the couple lives together and shares domestic duties.
• Commitment and Future Intentions: Statements and evidence showing ongoing commitment and plans for the future.

6. Special Considerations for Certain Applications

• Domestic Violence and Child Protection: Australia’s migration laws include specific protections for applicants who face domestic violence or where children are involved. If the applicant experiences family violence, they may be eligible for permanent residency, regardless of the relationship’s status.

Conclusion

Australian Partner Visa applications require thorough preparation and documentation to meet the Migration Regulations 1994 criteria. For onshore applications, a key consideration is whether the applicant holds a substantive visa, as those without one must meet Schedule 3 requirements. Offshore applications, by contrast, focus primarily on meeting the genuine relationship criteria without the additional hurdle of Schedule 3.

These requirements, particularly around sponsorship, evidence, and compliance, are subject to strict scrutiny, making careful attention to detail essential for a successful application. If you require further information or assistance with partner visa applications, please contact us and one of our experts will get in touch with you.