Subclass 801 Partner visa

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.

One application, assessed twice

The 820 and the 801 are lodged together as one combined application, from inside Australia (but not in immigration clearance) and with a single first-instalment charge; the second instalment is nil [Sch 1 item 1214C] [Sch 1 item 1124B]. The applicant does not lodge again two years later: the same application is assessed a first time for the 820 and a second time for the 801.

Bridging status during processing

The bridging route depends on the applicant's status at lodgement. A person who validly lodges the combined application while holding a substantive visa ordinarily uses the Bridging Visa A route [Sch 1 item 1301]; a person who validly lodges without a substantive visa ordinarily uses the corresponding Bridging Visa C route [Sch 1 item 1303]. A granted BVA comes into effect when the substantive visa ceases [cl 010.511]. A BVA does not permit travel, so a BVA holder who needs to leave and re-enter while the application is pending must first obtain a Bridging Visa B [cl 020.511(1)(c)]; that travel pathway must not be assumed for a BVC holder. Once the 820 is granted, it is a substantive temporary visa and ordinarily runs until the 801 application is decided or withdrawn, subject to the other cessation events in the clause [cl 820.511], so bridging status principally matters before the temporary grant.

820 first, then 801, two years apart

The 820 is decided first. The 801 is decided on the same application, and as a rule cannot be granted until at least two years have passed since the application was made [cl 801.221(2)], not since the 820 was granted, so the time spent waiting for and then holding the 820 counts toward the two years. The permanent visa is not automatic: it has to be earned by the relationship continuing to the 801 decision, or by one of the defined exceptions.

The usual rule

At the permanent (801) stage the applicant must hold the 820, continue to be sponsored by the sponsoring partner, still be their spouse or de facto partner, and, as a rule, have waited at least two years from the date the application was made [cl 801.221(2)]. The two years runs from the application, not from the grant of the 820, so time already spent on the temporary visa counts. Where the 820 was granted through ministerial intervention, the two years runs from that decision instead [cl 801.221(2A)].

When the two-year wait falls away

For a couple whose relationship is continuing, the wait is removed where, at the time of application, they were already in a long-term partner relationship [cl 801.221(6A)]. 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. Separately, the death and relationship-ended routes are their own qualifying bases, which the Minister may grant in less than two years [cl 801.221(7)].

If the relationship ends

If the relationship genuinely ends before the 801 is decided and no exception applies, the permanent visa is refused, because the 801 requires the applicant to still be the sponsor's spouse or de facto partner [cl 801.221(2)]. Three defined routes still lead to the 801 after the relationship has ended: the sponsoring partner has died and the applicant would have continued in the relationship [cl 801.221(5)]; or the relationship ceased and either there has been family violence by the sponsor, or there is a child of the relationship [cl 801.221(6)]. The child route requires a court-recognised custody, access or maintenance connection, not merely a shared child.

The exceptions apply at the temporary stage too

These routes are not confined to the permanent stage, and they run in two separate chains, each serving a defined group of applicants.

Spouse and de facto applicants. For an applicant on the spouse or de facto bases, including a Subclass 300 holder or former holder who has already married the sponsor [cl 820.211(2)] [cl 820.211(5)] [cl 820.211(6)], if the sponsor dies, or the relationship ceases with family violence by the sponsor or a qualifying child, before the 820 is granted, the 820 can still be granted on that basis [cl 820.221(2)] [cl 820.221(3)]. An applicant who then holds an 820 granted on the death basis meets the 801 simply by holding it [cl 801.221(3)], and one who holds an 820 granted on the family-violence or child basis meets it the same way [cl 801.221(4)], without having to show an ongoing relationship at the permanent stage.

Subclass 300 holders who have not yet married. A Prospective Marriage applicant still on the prospective-spouse route has a chain of their own. A current 300 holder whose sponsoring partner has died meets the 820 by satisfying the Minister that they would have continued to be the spouse or prospective spouse [cl 820.211(7)]. A current 300 holder whose relationship has ceased meets it where the applicant, a family-unit member who made a combined application, or a dependent child has experienced family violence committed by the sponsoring partner, or where the child-of-the-relationship links exist [cl 820.211(8)]. A former 300 holder who no longer holds a substantive visa has the same relationship-ceased routes, but no death route [cl 820.211(9)]. The 820 is granted on the footing that the applicant continues to meet the applicable route at decision [cl 820.221(1)(a)]. An applicant holding an 820 granted on the current-holder death or relationship-ceased basis then meets the 801 simply by holding it [cl 801.221(6AA)], and one holding an 820 granted on the former-holder basis meets it the same way [cl 801.221(6AB)]. So a bereaved or abused applicant is not defeated at the temporary stage, whether or not the marriage ever took place.

What counts as family violence

The family-violence route runs on the definitions and evidence rules in Division 1.5. Relevant family violence is conduct, actual or threatened, towards the victim, a member of either party's family unit, or their property, that causes the victim to reasonably fear for, or be reasonably apprehensive about, their wellbeing or safety [reg 1.21]. It is not limited to physical harm, so psychological or financial abuse can qualify. The violence, or part of it, must have occurred while the relationship existed [reg 1.23].

Proving family violence: judicial and non-judicial routes

A judicially determined claim is made out by one of three things: a Family Law Act injunction against the perpetrator granted on the victim's own application [reg 1.23(2)], a State or Territory protection order made after the perpetrator was given an opportunity to be heard, or a conviction, or a recorded finding of guilt, for a violence offence against the victim [reg 1.23(6)]; a compliant judicial claim must be accepted. A non-judicial claim needs both a statutory declaration by the applicant, who may allege family violence committed against themselves or against another member of the family unit [reg 1.25], and the items of evidence prescribed by instrument [reg 1.24], whose number and categories are set by a legislative instrument and must be checked. On a non-judicial claim, if the decision-maker is not satisfied that the victim experienced family violence, they must refer the matter to an independent expert and take that expert's opinion as correct [reg 1.23].

The review safety valve

One route to the 801 does not require currently holding an 820. Where the applicant held an 820 that ceased when the 801 was refused, and the Administrative Review Tribunal then remitted that refusal, or itself determined that the applicant meets the 801 criteria apart from holding an 820, the 801 can still be granted [cl 801.221(8)]. So a refused applicant whose 820 lapsed on the refusal is not shut out while review runs its course.

Combined applications

A dependent child can be included in the combined application [Sch 1 item 1214C(3)(f)]; a broader member of the applicant's family unit can be included only where the primary applicant is a current or former Prospective Marriage (Subclass 300) holder [Sch 1 item 1214C(3)(e)]. An included person can be granted the 820, and then the 801, as a secondary applicant with the primary [cl 820.311] [cl 820.321] [cl 801.311] [cl 801.321]. Each included person must meet the public interest criteria that apply to them [cl 820.224].

Member of the family unit

The ordinary child combines as a "dependent child" [reg 1.03] (a 23+ financially-dependent child can still qualify), while the reg 1.12(2) family-unit tiers (23+ only via incapacity) govern the broader family-unit route open to current or former 300 holders. For that broader route, a child or stepchild of the applicant or of the sponsoring partner must not be married, engaged or in a de facto relationship, and must be either under 18 [reg 1.12(2)(b)(i)], aged 18 to 22 and dependent on the parent [reg 1.12(2)(b)(ii)], or 23 or over and dependent through incapacity to work [reg 1.12(2)(b)(iii)] [reg 1.05A]. A dependent child of such a child, that is a dependent grandchild, also counts [reg 1.12(2)(c)]. Those tiers are tested up to the grant of the 820, so a child near an age boundary can age out before the 820 is granted and needs their timing projected at the start. Once the child holds the 820, the permanent stage does not retest membership: the 801 requires only that the child still hold the 820 granted on that basis and that the primary be granted the 801 [cl 801.321], so ageing during the two-year wait does not lose them.

Adding a child after lodgement

A child born to the applicant after lodgement but before the decision is automatically taken to have applied, combined with the parent's application [reg 2.08]; a dependent child can be added to the temporary 820 on a written request made before the decision [reg 2.08B]; and a spouse, de facto partner or dependent child can be added to the permanent 801 on a written request made before the decision [reg 2.08A].

A child born after the 820 is granted

A child born after the 820 is granted, but before the 801 is decided, is handled by where the birth happens. A child born in Australia is taken under section 78 to have been granted the same visa the parent holds, the 820, but only if the child is a non-citizen at birth [MA s 78]. If either parent is an Australian citizen or Australian permanent resident at the child's birth, the child is an Australian citizen at birth, needs no visa and does not receive the automatic section 78 grant [Citizenship Act s 12(1)(a)]. Where section 78 applies, the child is combined into the undecided permanent application [reg 2.08]. A child born while the parent is temporarily overseas does not receive the automatic section 78 grant. If a parent was an Australian citizen at the child's birth, the child may instead be eligible for citizenship by descent [Citizenship Act s 16(2)]; if the child is not an Australian citizen, the usual visa route is a Subclass 445 [cl 445.211] before sharing in the 801.

An onshore partner refusal carries a review right that belongs to the applicant, but it comes with a location trap: the applicant has to be in Australia to use it.

The applicant may apply

Because the 820 and 801 can be granted in the migration zone and the application was made there, a refusal is a reviewable migration decision under the general onshore limb [s 338(2)], provided the decision was not made while the applicant was in immigration clearance, and the applicant was not a person who had been refused immigration clearance and had not subsequently been immigration cleared [s 338(2)(c)]; the person who may apply is the applicant [s 347A(1)(a)]. There is no separate prescription for the onshore partner visa: it rests on that general limb, so the applicant, not the sponsor, holds the review right.

But only while physically present in the migration zone

The catch is location. A review of an onshore refusal may be applied for only by an applicant who is physically present in the migration zone when the review is lodged [s 347A(2)]. A refused applicant who has left Australia cannot lodge the review from offshore, and the time limit keeps running: the Tribunal application must be made within the prescribed period after notification [s 347], which cannot be extended. So a person who departs after an onshore refusal can lose the review right entirely, which is a strong reason to stay in Australia until the review path is settled.