Subclass 100 Partner visa

One application, assessed twice

The 309 must be applied for while the applicant is outside Australia, and at the same time as the 100 [Sch 1 item 1220A]. The two form a single combined application with one first-instalment charge; the second instalment is nil [Sch 1 item 1129]. There is no second lodgement two years later; the same application is simply assessed a second time for the permanent visa.

The order of grant

The 309 is decided first, and once granted it lets the holder travel to, enter and remain in Australia until the 100 application is decided or withdrawn, subject to the other cessation events in the clause [cl 309.511]. Both visas may be granted whether the applicant is in or outside Australia, as long as they are not in immigration clearance [cl 309.412] [cl 100.411], so the holder can be living in Australia on the 309 when the 100 comes through.

No onshore lodgement traps

Because it is one continuing application, the holder never makes a fresh onshore application, so the things that can catch an onshore 820 do not arise: a no-further-stay condition cannot invalidate a lodgement that never happens, and Schedule 3, which for the 820 is a grant criterion rather than a lodgement bar, is not engaged. Section 48 would not bar an onshore partner lodgement in any case, because the Partner (Temporary) class is a prescribed exempt class [reg 2.12]. What sets the offshore route apart is simply that it began from outside Australia.

The usual rule

At the permanent (100) stage the applicant must hold the 309, still be the spouse or de facto partner of the sponsoring partner, and, as a rule, have waited at least two years from the date the application was made [cl 100.221(2)]. The two years runs from the application, not from the grant of the 309, so time already spent waiting for the 309 counts. Where the 309 was granted through ministerial intervention, the two years runs from that decision instead [cl 100.221(2A)].

When the two-year wait falls away

The wait is removed where, at the time of application, the couple was already in a long-term partner relationship [cl 100.221(5)]. A long-term partner relationship means a spouse or de facto relationship that has run for at least three years, or for at least two years if there is a dependent child, other than a stepchild, of both partners [reg 1.03 def long-term partner relationship]. So a child shortens the qualifying period from three years to two, but does not remove the wait on its own: a couple together less than two years is not spared the wait simply because they have a child. The wait is also removed where the sponsor holds or held a permanent humanitarian visa and the relationship pre-dated, and was disclosed before, that grant [cl 100.221(6)].

If the relationship ends

Separately, the 100 can still be granted even after the relationship has ended, through the sponsor's death, family violence, or a child of the relationship. Those routes turn on the relationship having ended rather than on the two-year clock.

The default

If the relationship genuinely ends before the 100 is decided, and no exception applies, the permanent visa is refused: the 100 requires the applicant to still be the sponsor's spouse or de facto partner [cl 100.221(2)]. Once a relationship has ended, no amount of evidence about how genuine it once was can save the visa.

The three protected routes

Even after the relationship has ended, three defined routes can still lead to the 100:

• Family violence [cl 100.221(4)]: the relationship has ended, the applicant entered Australia after applying, and the applicant (or a member of the applicant's or the sponsor's family unit) suffered family violence committed by the sponsor. It exists so that a partner is not trapped in an abusive relationship by their visa.
• Death of the sponsor [cl 100.221(3)]: the sponsor has died, and the applicant satisfies the Minister that the relationship would have continued had the sponsor lived.
• A child of the relationship [cl 100.221(4AA)]: the relationship has ended, but the applicant has custody or joint custody of, access to, or a Family Law Act residence or contact order for a child of the relationship. For the same child, the sponsor must have court-granted joint custody or access, a Family Law Act residence or contact order, a child-maintenance order, or another formal maintenance obligation. Simply sharing a child is not enough; each side must have the defined parenting or maintenance link.

The evidentiary reality

None of these is automatic; each has to be established on evidence. Family violence runs through the judicial and non-judicial evidence rules in Division 1.5, including the prescribed evidence and assessment framework, and must be established under those provisions rather than assumed [regs 1.23–1.27].

Living in Australia during the wait

Once the 309 is granted, the holder can be in Australia while the 100 is pending: the 309 ordinarily runs until the 100 application is decided or withdrawn, subject to the other cessation events in the clause [cl 309.511], and the 100 can be granted whether the holder is in or outside Australia [cl 100.411]. The offshore label describes where the application started, not where the family has to spend the wait.

Tested again at the permanent decision

Because it is one continuing application, the core requirements are tested afresh at the 100 decision, not settled at lodgement: in the ordinary case the applicant must still be the spouse or de facto partner of the same sponsoring partner [cl 100.221(2)], unless they qualify instead through the death, family-violence or child alternatives [cl 100.221(3)] [cl 100.221(4)] [cl 100.221(4AA)]; that partner must also nominate the applicant for the permanent grant, though the nomination is dispensed with where one of those alternatives applies, or where the grant is made before the two years are up [cl 100.226]; and PIC 4007 must be met again [cl 100.222]. So a relationship that has ended does not by itself defeat the 100, because those alternatives can carry it, and a health problem on the significant-cost ground can still be waived [PIC 4007(2)].

Review of an offshore partner refusal splits by stage. The provisional 309 gives a clear review right to the applicant; the permanent 100 usually gives no effective review to an applicant who is still offshore.

A refused 309: the applicant may apply

A decision to refuse a Subclass 309 is a reviewable migration decision that the Regulations prescribe directly [reg 4.02(4)(saa)] [s 338(9)], and the person who may apply for that review is the applicant [reg 4.02(5)(raa)]. Because the 309 refusal is named as reviewable in its own right, the review is not gated by the physical-presence rules that apply to the general section 338 limbs, so the applicant can seek review from outside Australia. This is the opposite of the Subclass 300, where the review belongs to the sponsor.

A refused 100: usually no effective review offshore

The permanent Subclass 100 is not separately prescribed. A 100 refusal falls under the general limb for a permanent visa applied for from outside Australia [s 338(7A)], and that limb lets only the applicant apply [s 347A(1)(a)], and only if the applicant was physically present in the migration zone both when the decision was made and when the review is lodged [s 347A(3)]. An applicant who is offshore therefore has no effective review of a 100 refusal; one who is in Australia, holding the 309, can seek it.

One time limit throughout

Whoever holds the review right, the Tribunal application must be lodged within the prescribed period after notification [s 347], and that migration time limit cannot be extended. A refused applicant who waits past the period loses the review even where the right existed.