A partner visa is for the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen to live in Australia, and if the applicant holds a prospective marriage visa, the partner visa fees are reduced.
‘Spouse’ is defined in s 5F of the Migration Act 1958:
- For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection.(2), the 2 persons are in a married relationship.
- For the purposes of subsection (1), persons are in a married relationship if:
- (a) they are married to each other under a marriage that is valid for the purposes of this Act; and
- (b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
- (c) the relationship between them is genuine and continuing; and
- (d) they:
- live together; or
- do not live separately and apart on a permanent basis.
- The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note: On 9 December 2017 the Migration Act 1958 was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017.
‘De facto partner’ and ‘de facto relationship’ are defined in s 5CB of the Act:
De facto partners
- (1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
- (2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
- (a) they have a mutual commitment to a shared life to the exclusion of all others; and
- (b) the relationship between them is genuine and continuing; and
- (c) they:
- (i) live together; or
- (ii) do not live separately and apart on a permanent basis; and
- (d) they are not related by family (see subsection (4)).
- (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
- (4) For the purposes of paragraph (2)(d), 2 persons are related by family if:
- (a) one is the child (including an adopted child) of the other; or
- (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
- (c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
To be eligible for a Partner visa the applicant must be sponsored by an Australian citizen, permanent resident or eligible New Zealand citizen and must demonstrate that they are in a genuine and continuing relationship, that they have been living together, or not separately, on a permanent basis since they committed to a shared life together to the mutual exclusion of all others.
In order to do this it is important to assemble the various documents that show shared financial responsibilities such as bank statements, household bills and the like. A statement should also be prepared outlining details about the relationship itself and how household responsibilities are dealt with. Proof of mutual friendships and joint activities is also useful. See the Proof of Relationship Statement on the matter plan.
When assessing whether the relationship is genuine and continuing, the Department of Home Affair’s case officer must consider the following five main categories:
- The history of the relationship;
- The financial aspects of a relationship;
- The nature of the household;
- The social aspects of a relationship; and
- The nature of the commitment.
It is worth noting however that it would be an error of law if a refusal decision was based, or partly based, on a delegate of the Minister for Immigration’s assessment that one or more of the above matters was not met.
When considering a couple’s living situation, in relation to a de facto relationship as defined in s 5CB of the Act, Procedures Advice Manual 3 (PAM3) refers to the judgment of the Federal Court of Australia Full Court in SZOXP v Minister for Immigration and Border Protection  FCAFC 69. The court’s judgment in this case means that a delegate of the Minister for Immigration cannot find that an applicant does not meet s 5CB(2)(c) solely on the basis that the applicant and their claimed de facto partner: −
- Never lived together before the visa application was made
- Were not living together at the time the application was made, that is, at the time of application; or
- Were not living together at the time the application is decided, that is, at the time of decision
Prospective marriage visa (subclass 300)
This is a temporary visa granted for nine months, allowing the visa holder to marry their partner in Australia. Once the visa holder has married the applicant is then eligible to lodge a Partner visa (subclasses 820/801) application. Additional fees are associated with the partner visa application however these are reduced if the applicant is the holder of a subclass 300 visa.
Partner visa (subclasses 309/100)
Offshore visa applicants Subclasses 309/100 are for offshore visa applicants. When applying for this visa the applicant applies for two separate visas at the same time: a provisional visa (subclass 309) and permanent visa (subclass 100). If the applicant is granted a subclass 309 visa two years from date of lodging the application, they will be invited to provide further information for the granting of a subclass 100 visa.
Partner visa (subclasses 820/801)
Onshore visa applicants Subclasses 820/801 operate similarly to the above subclasses. However, this option is for applicants who are applying onshore. Otherwise, the process is the same, with subclass 820 being a provisional visa and subclass 801 being a permanent residency visa.
Offshore and onshore applicants – Second stage partner visa
Two years after first applying for a partner visa subclass 309/100 or subclass 820/801 visa, the applicant and sponsor are invited to give further information prior to being assessed for permanent residency. This is not a new visa application, but rather known as the second stage of the partner visa application.
To satisfy the criteria for permanent residency the applicant and sponsor must demonstrate that they continue to be in a genuine relationship, again assessed against the five main categories outlined above. If the relationship has ended the applicant may still be eligible for a permanent residency visa through their original nomination under the following exceptions:
The sponsor has died: regulations 801.221(3), 801.221(5).
Family violence has been committed by the sponsor: regulations 100.221(3), 100.221(4), 100.221(4)(c)(i), 801.221(4), 801.221(6)(c)(i). See the Department of Home Affairs page on Family violence and your visa for further information on this exception.
The applicant is given shared custody or access rights to a child, where the sponsor also has rights and responsibilities towards that child: regulations 100.221(4)(c)(ii), 801.221(6)(c)(ii). See Schedule 2 of the Migration Regulations 1994.
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