Partner Visas (subclass 820 and 801)

A few useful pointers for anyone thinking about preparing a partner or spousal visa application.

Partner visas (or spousal visas) form an important part of Australia’s permanent migration programme.

How many are granted ?

The Department of Home Affairs is likely to grant over 47,825 partner visas this year. It’s important to understand that the term “partner visa” includes the Prospective Marriage visa as well as the provisional and permanent partner visas. Demand for partner visas is very high and there are substantially more partner visa applications in the pipeline than there are places in the migration program. This is one of the many reasons why it can take so long for a partner visa application to be processed.

It’s important to understand that the partner visa processing times can vary enormously according to the quality of the application. A top quality application can be processed in less than a third of the time of an incorrect, incomplete and ill-prepared partner visa application. Quality applications lodged overseas seem to be getting priority processing at the moment and some are processed in a few weeks or a few months. Quality onshore applications are being allocated to case officers for processing in as little as 3 to 4 months. It might take a little longer for these applications to be finalised, but at least things are moving along.

Who can be a “partner” 

A partner can be the spouse or defacto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

An Eligible New Zealand Citizen (ENZC) is a person who is defined as a ‘protected SCV’ holder under the Social Security Act 1991. Protected SCV holders are those who arrived in Australia on a New Zealand passport and were:

  • in Australia on 26 February 2001
  • in Australia for 12 months in the 2 years immediately before this date
  • assessed as protected SCV holders before 26 February 2004.

An ENZC can sponsor family members for an Australian permanent visa.

The New Zealand Citizen Family Relationship (Temporary) visa (subclass 461) is available to the partners of New Zealand citizens who are not ENZCs. The subclass 461 visa can provide various pathways to permanent residence for the 461 visa holder and these can be well worth exploring, even where the relationship with the New Zealand citizen has broken down.

Australian permanent residents and eligible New Zealand citizen sponsors must usually live in Australia. “Usually” can mean different things according to someone’s circumstances. Strong and established ties to Australia can sometimes be enough to satisfy the “usually live” in Australia requirement even if the sponsor is currently living overseas but intends to return to Australia.

Partner visa application

Partner visa applications are generally submitted by temporary visa holders already living in Australia with their “Aussie” partner. The visa applicant may hold a working holiday visa, a 457 visa or a student visa.  Some partner visa applicants may hold a visitor visa when they submit their application.

A partner visa application is presently a two-stage process and there is one combined online application form for both the provisional partner (820) visa and permanent partner (801) visa. It is no longer possible to submit a paper application – a partner visa application must be submitted online.

The Australian / PR / ENZC partner must submit a sponsorship application and this application must be approved, remain in force and not be withdrawn. The sponsor’s “sponsorship application” is submitted after the partner visa application is submitted.

The Department of Home Affairs currently charges one processing fee that covers the subclass 820 and subclass 801 visas as well as the sponsor application. As at 22 June 2017 the base fee is $7000. The total fee is higher where children are included in the application.

Changes on the horizon?

We’ve been advised by the Department of Home Affairs that a partner visa application may soon become a three-stage process with a fee payable at each stage.

The proposed stages are:

Stage 1 – Sponsorship application

Stage 2 – Provisional partner visa application (820)

Stage 3 – Permanent partner vis application (801)

The sponsor is likely to be required to lodge the sponsorship application first. There is a possibility that the partner visa applicant could be required to wait until the sponsorship application is actually approved before being able to lodge a partner visa application. If this happens, budding partner visa applicants could be waiting a lot longer before they can submit their partner visa application. These proposes changes (if they happen) could make it more difficult for some partner visa applicants to lodge their partner visa applications whilst they are in Australia, especially if their visas are about to expire.

The Department has indicated in no uncertain terms that it is considering introducing a fee for the sponsorship application; a second fee for the provisional partner visa application and a third fee for the permanent partner visa application. Will this be another love tax?

Visitor visa holders

The current Australian migration rules permit certain visitor visa holders to submit a partner visa application whilst they are in Australia. This may be about to change. The Department of Home Affairs has advised that it is planning to change the partner visa legislation to prevent visitor visa holders submitting a partner visa application whilst in Australia. We suspect there may be some exceptions to this rule if it is introduced.

The two-year wait out period

In most cases, applicants can’t be granted the permanent (801) visa until at least two years after their application is made. This is called the two-year wait out period. (More on this fictitious two years later!)

Long-term relationships

The two-year wait out period may not apply if, at the time the visa application was made, the visa applicant and their partner were in a long-term partner relationship and the visa applicant can provide sufficient evidence to demonstrate the length of the long-term relationship.  In this situation, the Department will usually grant the subclass 801 visa immediately after granting the subclass 820 visa – same day! Long-term relationship cases need to be given extra care and attention if the objective is to achieve a significantly faster permanent residence outcome.

Other situations in which the two-year wait out might not apply

There are other circumstances in which an applicant who is eligible for grant of a subclass 820 visa can be granted a subclass 801 visa without having to wait the two years. Applicants with children are encouraged to investigate whether they can avoid the two-year wait out.

The unofficial – Stage 4

The woeful reality is that there is an “unofficial Stage 4” in most partner visa applications.  At the end of the two-year wait out period, there is yet another lengthy online “assessment” application to be prepared and submitted and further documentation to be provided, which may include obtaining further character/police checks. According to the Department’s website, it can take a further 15 to 22 months for this final assessment to take place. This means that it could take close to four years for some poor souls to obtain the subclass 801 visa. The subclass 801 visa is the permanent partner visa. That’s an awful long time to be waiting for permanent residence!

Equal treatment of same-sex relationships and registered relationships

The Same-sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (the Reform Act) amended various Commonwealth laws, including the Migration Act, to give same-sex de facto relationships and registered relationships the same recognition as already given to opposite-sex relationships.

Same-sex marriages

From 9 December 2017, following the legalisation of same-sex marriage in Australia, applicants can now apply for a partner visa as their partner’s ‘spouse’ if they are in a same-sex marriage.

Fiancés and fiancées can also apply for a Prospective Marriage visa (subclass 300) if they are in a same-sex relationship and genuinely intend to marry their prospective Australian, PR or ENZC spouse in Australia or overseas. Many people decide to have two weddings – a civil wedding in Australian and a second flamboyant wedding somewhere warm and exotic where family and friends from all over the world can meet to celebrate their marriage with a week-long party.

As mentioned above, Australian permanent residents or eligible New Zealand citizen sponsors must “usually” live in Australia.

Defacto relationships

Defacto couples are required to provide a substantial amount of evidence to the Department of Home Affairs in support of a partner visa application. The evidence must demonstrate that:

  • the couple has a mutual commitment to a shared life to the exclusion of all others;
  • the couple has a genuine and continuing relationship and are living together or not living separately on a permanent basis. A defacto couple is expected to provide similar relationship evidence to that of a married spouse, but minus the marriage certificate.
  • the defacto relationship has been in existence for at least 12 months, unless there are compassionate and compelling circumstances.

Visa Refusals

An analysis of government statistics shows that a large number of partner visa applications are refused each year. We understand the refusal rate stands at around 20%. This suggests that people are submitting partner visa applications that are doomed from the outset! The partner visa rules are very black and white. If you meet the requirements for the grant of a partner visa – you will get the visa. Partner visas are expensive and understanding the visa rules is important.

Some relationships break down mid-process and, in many cases, this will result in a visa refusal. The outcome can be different where domestic violence issues have contributed to the relationship breakdown. Hard evidence of the episodes of domestic violence (police reports/medicals reports/photos/ VROs etc) and evidence that the relationship was genuine and continuing before the breakdown occurred can be critical to achieving a visa grant in these circumstances.

Relationships registered under Australian State/Territory law

Where a relationship is registered under a State/Territory law, the minimum 12 months defacto relationship period does not apply. However, further compelling documentary relationship evidence may well be critical to the outcome of these types of partner visa application.

Legal Marriages

Where an applicant applies for a partner visa on the basis of their married relationship, the marriage must be recognised as a legal marriage under Australian migration law. Whether or not a foreign marriage is recognised under migration law depends on whether it is recognised as valid in the country in which the marriage was solemnised or formalised. If you got married on a beautiful pacific island (or perhaps another exotic location), it might be worth checking whether your marriage is recognised under the Australian Marriage Act and under Australian migration law before you embark a partner visa application.

Arranged Marriages and Proxy Marriages

Australian law recognises that arranged marriages and proxy marriages are permitted in many countries. Partner visa applicants who married their Australian /PR / ENZC spouse in arranged marriage or a proxy marriage are still required to provide compelling evidence to show that their relationship is genuine, ongoing, mutually-exclusive and that the couple live together, or do not live separately and apart on a permanent basis. These types of applications may be more closely scrutinised by the Department staff in order to ascertain whether family duress or cultural pressure was involved in the marriage process. Establishing and proving that there was “Real Consent” to wed can be a critical factor.

Partner visa applications and legal separations

Some people remain married to their ex for a variety of reasons after a formal separation. Being married to someone other than your defacto partner won’t prevent you from applying for and being granted a partner visa if you can meet the defacto partner visa eligibility requirements.

Partner visa sponsorships

There is a strict limit on the number of partners a person can sponsor (not at the same time!!!) and a strict limit on the number of times a person can be sponsored for partner visa. Although it may seem very unromantic, it is important to find out whether your partner has been involved in a previous partner visa application as either a visa applicant or a sponsor. If they have, it’s important to gather all relevant facts, including the date of the previous application as this also has an important bearing on what can and can’t be achieved.  In some instances, if there are compelling circumstances that affect the Australian / PR /ENZC sponsor, these limitations may be waived.

Sponsors with criminal convictions

Where a sponsor has an unresolved charge or a conviction for a registrable offence the sponsorship application must be refused. These type of offences include sex offenders and child sex offenders.

Partner visa applicants with children

Complications can arise when children are to be included in a partner visa application, including where:

  • There are unresolved custody and access issues with the other parent
  • Only one parent is named on the child or children’s birth certificate(s)
  • The child or children were not included in the original 820 / 801 visa application
  • The child or children were living overseas when the applicant submitted their partner visa application whilst in Australia
  • The children are 18 years or over and still in full-time education

Food for thought

The above represents a mere snapshot of some of the many factors that may need to be taken into consideration when preparing and submitting a partner visa application. Partner visa applications are rarely straightforward and some are significantly more complex than others.

The writer of this article has been dealing with partner visa applications for over 15 years and has never had a partner visa application refused. When an EasiVisa  registered migration agent agrees to take on a partner visa application, our agents appreciate that our clients are entrusting their future to us. It’s a huge responsibility and it’s a responsibility that our team takes very seriously. Securing positive partner visa outcomes is as important to us as it it to our clients.

Contact us today or call +61 08 9429 8860 if you’d like to have a chat about your partner visa options.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.