Partner Visas

The Regulations provide for a number of different spouse or partner visas. All of them are in two stages – the non-citizen spouse or partner first applies for a provisional visa, and then a permanent visa. An applicant for a spouse or partner visa must be sponsored by a spouse/partner who is:

  • an Australian citizen or
  • permanent resident, or
  • an eligible New Zealand citizen (ENZC) (defined in Regulation 1.03)

 

A spouse is defined in Section 5F of the Migration Act.

 

MIGRATION ACT 1958 – SECT 5F

Spouse

(1)  For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.

 

(2)   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 husband and wife to the exclusion of all others; and

(c)  the relationship between them is genuine and continuing; and

(d)  they:

(i)  live together; or

(ii)  do not live separately and apart on a permanent basis.

 

(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.

Note:          Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.

 

 

A defacto parter is defined in Section 5CB of the Migration Act.

 

MIGRATION ACT 1958 – SECT 5CB

 

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.

 

Definition

(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.

 

Offshore

 

An overseas spouse/partner of an Australian citizen, permanent resident or ENZC may apply for a subclass 309 (Spouse – Provisional) and subclass 100 (Spouse – Residence) visa.

 

The two visas are applied for at the same time – see paragraph 1220A(3)(c) of Schedule 1 – but the subclass 309 will be granted first with the processing of the subclass 100 visa suspended until 2 years have passed from the making of the application, unless certain circumstances exist.

 

The key requirements for the grant of a subclass 309 visa are as follows:

 

Time of Application Criteria

–       The applicant is a spouse or de facto partner of an Australian citizen or permanent resident, or ENZC – subclause 309.211(2) of Schedule 2 – or he or she intends to marry such a person – subclause 309.211(3)

–       The applicant is sponsored by his or her partner or intended spouse – clause 309.213

–       The sponsor is not prohibited by the Regulations from sponsoring the

applicant – clause 309.212

 

Time of Decision Criteria

 

–       The applicant continues to meet the criteria set out in clause 309.211 – clause 309.221.

–       The sponsorship has been approved by the Minister and remains in force – clause 309.222.

 

In general, the subclass 100 visa will be granted two years from the date of application, provided that the couple is still in a spousal relationship or de facto

relationship – see clause 100.221(2), and the exceptions to this requirement in clauses 100.221(5), (6) and (7).

 

Note that a subclass 100 visa may still be granted in some circumstances if the relationship has broken down. These circumstances are:

–       The sponsoring spouse or de factor partner has died – subclause 100.221(3).

–       The applicant, or a member of his or her family unit, has suffered ‘family violence’ committed by the sponsoring spouse – subparagraph 100.221(4)(c)(i).

–       There is a child of the relationship and the applicant has a parenting order

made by the Family Court in his or her favour in relation to the child – subparagraph 100.221(4)(c)(ii).

 


 

Prospective Marriage Visa (subclass 300)

 

A Prospective Marriage visa is another offshore visa that can be applied for by a non-citizen intending to enter Australia to marry an Australian citizen or permanent resident, or ENZC. The subclass 300 visa is valid for only 9 months, but does allow full work and study in Australia.

 

Once the applicant has entered Australia and married his or her sponsor within that 9 month period, the applicant can apply for a subclass 820 visa – subclauses 820.211(5) and (6).

 

Again, the subclass 820 visa can be granted if the relationship ends due to the death of the spouse, family violence committed by the spouse, or a Family Court order in relation to a child of the relationship – subclauses 820.211(7) – (9).

 

Onshore

 

A non-citizen spouse or de-facto partner of an Australian citizen or permanent resident, or ENZC, may apply for a subclass 820 (Partner) and 801 (Partner – Residence) visa onshore. The criteria for the grant of these visas are much the same as for subclass 309 and 100 visas, and are set out in Parts 820 and 801 of Schedule 2 of the Regulations.

 

One difference to note is that while a subclass 309 visa cannot be granted if the relationship has broken down, a subclass 820 visa can be, if the relationship has broken down because of the death of the sponsor, family violence committed by the sponsor, or a Family Court order relating to a child of the relationship.