Subclass 309 Partner (Provisional) visa

The combined application

The offshore partner pathway is a single combined application that leads to two visas in turn: the Subclass 309 (Partner (Provisional)) first, then the Subclass 100 (Partner (Permanent)) [Sch 1 item 1220A] [Sch 1 item 1129]. The applicant lodges once, from outside Australia, and pays once; the 309 is decided first and the 100 is decided later on the same application [cl 100.221]. The 309 carries the person while the permanent decision is pending; it runs until the 100 is decided or the application is withdrawn [cl 309.511].

Who it is for

This is the pathway for a partner of an Australian citizen, permanent resident or eligible New Zealand citizen who is outside Australia when they apply [Sch 1 item 1220A]. Its onshore counterpart is the 820/801, used by a partner who is in Australia; the two are the same idea lodged from different places. A person who is only engaged (not yet married or in a de facto relationship) can still use the 309 through its intended-spouse limb, or use the separate Prospective Marriage visa (Subclass 300).

The two stages

The two-stage shape is deliberate: the 309 tests that the relationship is genuine at the start, and the 100 tests that it is still genuine and continuing about two years on. The permanent visa is not automatic; it has to be earned by the relationship continuing (or by one of the defined exceptions).

The three bases

The applicant must be, in relation to an Australian citizen, permanent resident or eligible New Zealand citizen, a spouse, a de facto partner, or an intended spouse [cl 309.211]. In practice the operative bases at grant are the first two, spouse and de facto, which share the same spine: a genuine, exclusive, continuing relationship, differing only in whether the couple is married. The intended-spouse limb is narrow and resolves to "spouse" by the time the visa is granted.

The spouse basis

A spouse is a person in a married relationship, which has four elements: the couple are married under a marriage valid for the purposes of the Act [MA s 5F(2)(a)]; they have a mutual commitment to a shared life as a married couple to the exclusion of all others [MA s 5F(2)(b)]; the relationship is genuine and continuing [MA s 5F(2)(c)]; and they live together, or do not live separately and apart on a permanent basis [MA s 5F(2)(d)]. The marriage certificate alone is never enough; the relationship behind it has to be genuine, exclusive and continuing.

The de facto basis

A de facto partner is not married to the sponsor but, with them, has a mutual commitment to a shared life to the exclusion of all others [MA s 5CB(2)(a)]; is in a genuine and continuing relationship [MA s 5CB(2)(b)]; lives with them, or does not live separately and apart on a permanent basis [MA s 5CB(2)(c)]; and is not related to the sponsor by family [MA s 5CB(2)(d)]. A de facto claim also carries an age rule and a minimum-duration rule of its own.

The intended-spouse limb

The 309 also has an intended-spouse limb: an engaged applicant, whose intended marriage would be valid under the Act, can lodge on the basis of intending to marry the sponsor [cl 309.211] [cl 309.213]. It is narrower than it sounds. Ordinarily the marriage must have taken place before the 309 can be granted, so by the time the provisional visa issues the applicant is a spouse. The narrow exception is where the intended spouse has died, or the relationship has ceased in a family-violence or related concession, and the applicant had by then become the spouse or de facto partner: clause 309.224(b) can then allow grant even though the marriage never took place [cl 309.224]. The limb only lets a couple lodge before the wedding; it does not let the applicant enter Australia in order to marry. A couple who wants to come to Australia and marry within a set period uses the Prospective Marriage visa (Subclass 300) instead.

Genuine and continuing at each stage

Ordinarily the relationship must be genuine and continuing, and must still hold at each decision: the applicant continues to meet the relationship criterion at the 309 stage [cl 309.221], and is the spouse or de facto partner of the sponsoring partner at the 100 stage [cl 100.221]. This is the ordinary route only: where the sponsor has died, or the relationship has ended in circumstances involving family violence or a child of the relationship, the pathway can still be met through the defined concessions [cl 309.221(2)] [cl 309.221(3)] [cl 100.221(3)] [cl 100.221(4)] [cl 100.221(4AA)], which are a separate topic.

The four statutory factors

Whether a relationship is genuine is assessed by considering all the circumstances, including four sets of statutory matters that are the same for a married and a de facto relationship [reg 1.15A(2)] [reg 1.09A(2)]. A strong file speaks to all four:

• Financial: joint ownership of real estate or major assets, joint liabilities, the pooling of financial resources for major commitments, any legal obligation one owes the other, and how day-to-day household expenses are shared [reg 1.15A(3)(a)] [reg 1.09A(3)(a)];
• Household: the living arrangements, any joint responsibility for the care of children, and how housework is shared [reg 1.15A(3)(b)] [reg 1.09A(3)(b)];
• Social: whether the couple present themselves to others as a couple, what friends and acquaintances understand the relationship to be, and joint social activities [reg 1.15A(3)(c)] [reg 1.09A(3)(c)];
• Commitment: the duration of the relationship, how long they have lived together, the companionship and emotional support they draw from each other, and whether they see it as long-term [reg 1.15A(3)(d)] [reg 1.09A(3)(d)].

Genuine and continuing

The factors go to the statutory relationship conditions as a whole: mutual commitment to a shared life to the exclusion of others, that it is genuine and continuing, and the couple's living arrangements [reg 1.15A(1)] [reg 1.09A(1)]. No single factor is decisive, and the absence of one (no jointly owned property, or a period living apart) is not fatal if the overall picture holds. Evidence should show the relationship developing over time, and should explain any gaps rather than leave them.

Statements and third parties

Statements from the couple set out the history and nature of the relationship in their own words; statements from family and friends corroborate the social dimension. These support the objective evidence across the four factors; they do not replace it. The strongest files pair a clear narrative with documentary proof under each of the four headings.

Who sponsors

The applicant is sponsored by the Australian citizen, permanent resident or eligible New Zealand citizen partner [cl 309.213], and in the ordinary continuing-relationship case that sponsorship must be approved by the Minister and still in force at decision [cl 309.222(1)]. That requirement does not reach every applicant: the whole of the sponsorship-approval clause is disapplied for an applicant who qualifies through the sponsor-death route [cl 309.221(2)] or the relationship-ceased routes of family violence or a child of the relationship [cl 309.221(3)], so a sponsorship that has lapsed or been withdrawn does not defeat those applicants [cl 309.222(4)]. Where the applicant's spouse or intended spouse has not turned 18, a parent or guardian of that person (aged 18 or over, and an Australian citizen, permanent resident or eligible New Zealand citizen) sponsors instead [cl 309.213].

The sponsorship limits

The Minister must not approve a partner sponsorship unless three separate conditions are met [reg 1.20J]: one about number, two about timing. Throughout, only partner permissions granted on the basis of a sponsorship or nomination count; a visa the sponsor obtained some other way (skilled migration, say) is not a "sponsored partner" visa and is ignored for all three.

• The number: no more than one other person can have been granted a partner permission as the sponsor's spouse, de facto or prospective spouse (a count that also picks up a previous partner who left after family violence by the sponsor) [reg 1.20J(1)(a)]. Counting the current applicant, that is a lifetime limit of two sponsored partners.
• Five years since sponsoring a previous partner: if the sponsor did sponsor an earlier partner, at least five years must have passed since the date that earlier application was made [reg 1.20J(1)(b)].
• Five years since the sponsor's own relevant permission: if the sponsor was granted a relevant permission as another person's spouse, de facto partner or prospective spouse on the basis of a sponsorship or nomination, whether the grant occurred onshore or offshore, at least five years must have passed since the date they made that application [reg 1.20J(1)(c)] [reg 1.20J(1A)].

Each five-year period runs from the date the earlier application was *made* (not from when the visa was granted) up to the point the current sponsorship is *decided*, so it is the current decision, not the current lodgement, that must fall outside the five years. All three conditions can be set aside where there are compelling circumstances affecting the sponsor [reg 1.20J(2)], for example a previous partner having died, or a child of the current relationship. A separate rule ordinarily prevents a Subclass 143 or 864 holder, during the five years after that parent visa was granted, from sponsoring a person who was already their spouse or de facto partner at grant. The Minister may nevertheless approve the sponsorship if that partner had compelling reasons other than financial reasons for not applying for the parent visa at the same time [reg 1.20KA(3)(a)]. If the partner did apply at the same time and later withdrew, withdrawal alone is insufficient: the application must have been withdrawn before grant and the partner must have had compelling reasons other than financial reasons for withdrawing it [reg 1.20KA(3)(b)].

The sponsor's criminal history

Beyond those numeric limits, a sponsor's criminal record can bar the sponsorship outright, and only at the temporary stage: the 309, and the 300 and 820, not the permanent 100 or 801. The Minister must refuse to approve the sponsorship where the sponsor has been convicted of a relevant offence and has a significant criminal record for it [reg 1.20KC]. A relevant offence is broadly one of violence, sexual assault, threats, harassment or stalking, breach of a violence order, firearms, people smuggling, or human trafficking, slavery, forced marriage or kidnapping [reg 1.20KC]. A significant criminal record means a death or life sentence, a single term of 12 months or more, or two or more terms totalling 12 months or more (concurrent terms each counted in full) [reg 1.20KD]. That mandatory refusal can be waived where it is reasonable, weighing the time since the sponsor completed the sentence, the best interests of any children, and the length of the relationship [reg 1.20KC]. A separate and stricter bar applies where any applicant is under 18: the sponsorship of all applicants must be refused if the sponsor has been charged with or convicted of a registrable child-sex offence, subject only to limited exceptions [reg 1.20KB].

The Woman at Risk bar

A specific prohibition applies where the applicant is male, the visa application is made within five years after the sponsoring partner was granted a Subclass 204 (Woman at Risk) visa, and, on the Subclass 204 grant date, the applicant was either her former partner (divorced or permanently separated) or her partner in a relationship that had not been declared to Immigration [cl 309.212]. A relationship declared by the Subclass 204 grant date is not caught by that undeclared-relationship limb. In the ordinary continuing-relationship case the sponsor must also consent to the Department disclosing to the applicant any conviction the sponsor has for a relevant (character) offence [cl 309.222(2)]; this sits in the same clause as the approval-in-force requirement and is likewise disapplied where the applicant qualifies through the death or relationship-ceased routes [cl 309.222(4)].

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.