Subclass 820 Partner visa

The combined application

The onshore partner pathway is a single combined application that leads to two visas in turn: the Subclass 820 first, then the Subclass 801 [Sch 1 item 1214C] [Sch 1 item 1124B]. The applicant lodges once from inside Australia and pays once; the 820 is decided first and the 801 later on the same application. Once granted, the 820 ordinarily remains in effect until the 801 application is decided or withdrawn, subject to the other cessation events in the clause [cl 820.511]. Both visas can be granted while the applicant is in or outside Australia, provided they are not in immigration clearance [cl 820.411] [cl 801.411].

Who it is for

This is the pathway for a partner of an Australian citizen, permanent resident or eligible New Zealand citizen who is in Australia when they apply [Sch 1 item 1214C]. Its offshore counterpart is the 309/100, used by a partner who is outside Australia; the two are the same idea lodged from different places. An engaged couple cannot use the 820 on engagement alone, because the 820 is only for a spouse or de facto partner [cl 820.211(2)(a)]. They can still reach it: a couple already living together may qualify on the de facto base, and a couple who marry before making a valid onshore application can apply as spouses. The Prospective Marriage visa (Subclass 300) is the dedicated route for a couple who wants to come to Australia to marry, but it is not the only path onto the 820.

Bridging while onshore

Because the applicant is already in Australia, a valid application ordinarily brings a bridging visa that keeps them lawful while the 820 is decided. That, and the onshore-specific gates: the section 48 and no-further-stay validity bars, and the Schedule 3 grant criterion, are what distinguish this pathway from the offshore one.

The two ordinary bases

Most 820 applicants qualify on one of two bases: as the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen [cl 820.211(2)]. The two bases share the same spine, a genuine, exclusive, continuing relationship, and differ only in whether the couple is married. Unlike the offshore 309, the 820 has no intended-spouse limb, because the prospective-marriage function is served by the separate Subclass 300, which then converts into the 820.

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.

From the 300 to the 820

One common route onto the 820 runs through the Prospective Marriage visa, though it is not the only way and the 820 has no prior-300 requirement. A person who entered Australia on a Subclass 300, married the sponsor, and now claims as a spouse can be granted the 820: while they still hold the 300 [cl 820.211(6)], or as a former 300 holder who, holding no substantive visa, last entered on the 300, married the intended sponsor, and then ceased to hold a substantive visa [cl 820.211(5)]. Either way, by the 820 stage they are assessed as a married spouse, not as a fiancé(e).

Genuine and continuing at each stage

In the ordinary case the relationship must be genuine and continuing at each decision [cl 820.221(1)(a)] [cl 801.221(2)]; where the sponsor has died or the relationship ended with family violence or a qualifying child, the defined alternatives apply instead [cl 820.221(2)-(3)] [cl 801.221(3)-(6)].

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.

Section 48

Section 48 stops an onshore non-citizen who has no substantive visa and has had a visa refused (other than a bridging-visa or character s 501/501A/501B refusal), or a visa cancelled under one of the specified provisions (e.g. s 109, s 116), since last entering [MA s 48]. A partner visa is a deliberate exception: Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) are both prescribed classes that a section 48 applicant may still apply for [reg 2.12]. So a prior refusal or cancellation does not, by itself, block an onshore partner application, though clearing section 48 does not make the application valid. Two further limits bite. A section 48 applicant must not have had any partner or interdependency visa refused since last entering Australia [Sch 1 item 1124B(3)(e)], and must lodge, at that time, the signed partner form and two supporting statutory declarations made within the preceding 6 weeks [Sch 1 item 1124B(3)(e)(ii)-(iii)], so in practice they get only one onshore partner attempt: once such a visa has been refused since last entry, a further onshore application is invalid and the applicant must go offshore. And an applicant left without a substantive visa then faces the no-further-stay bar and the Schedule 3 gate.

The no-further-stay condition

Since last entering Australia, a person who has held a visa subject to a no-further-stay condition, that is condition 8503, 8534, 8535 or 8540, cannot make a valid onshore application for a visa of a kind that the relevant condition bars [MA s 46(1A)] [MA s 41(2)(a)]. Each of those conditions bars an onshore Subclass 820 application, but each leaves defined kinds open: 8503 leaves only a protection visa open; 8534 also leaves the Subclass 485 and the Subclass 590 open; 8535 also leaves certain government-supported student visas open; and 8540, which can be imposed on a Subclass 462 (Work and Holiday) visa, also leaves a further Subclass 462 open [condition 8503] [condition 8534] [condition 8535] [condition 8540]. The general waiver ground requires compelling and compassionate circumstances that developed since grant, were beyond the holder's control and caused a major change, together with a written request and, after an earlier refusal, substantially different circumstances [reg 2.05(4)]. Condition 8503 also has a separate waiver route for a person who holds a Subclass 790 (Safe Haven Enterprise) visa, or is a lawful non-citizen who has ever held one, and who satisfies the regional work or study pathway requirements of subregulation 2.06AAB(2) [reg 2.05(4AB)] [reg 2.06AAB(2)]. Conditions 8535 and 8540 have no condition-specific waiver route, so for them the general ground is the only way through. Unless an applicable waiver is obtained before lodgement, the 820 application is invalid.

Schedule 3: who it catches

Schedule 3 catches only an 820 applicant who does not hold a substantive visa when the application is made, typically an unlawful non-citizen, or someone whose substantive visa has ended and who is now only on a bridging visa. An applicant who still holds a substantive visa at lodgement is not subject to Schedule 3 at all [cl 820.211(2)(d)].

Getting past Schedule 3

For the ordinary applicant without a substantive visa there are two ways through, both within limb (ii) of the same provision [cl 820.211(2)(d)]. The first is to actually satisfy Schedule 3 criteria 3001, 3003 and 3004, which is hard: criterion 3001 requires the application within 28 days of the applicant last ceasing to hold a substantive visa, and criterion 3004 requires the Minister to be satisfied that the applicant does not hold a substantive visa because of factors beyond their control and that there are compelling reasons to grant. Among its other requirements, the applicant must have substantially complied with prior visa conditions and must have been entitled to be granted the visa on the day they last held a substantive visa or criminal justice visa [sch 3 3001] [sch 3 3004] (criterion 3003 is a rarely-relevant 1994 rule). The second, and in practice the usual, route is the waiver: the Minister may be satisfied that there are compelling reasons for not applying Schedule 3 to that applicant at all. The waiver is for the applicant without a substantive visa, and it commonly turns on an Australian citizen child of the relationship, or serious hardship if the applicant had to leave and re-apply offshore. A distinct limb (i) covers an applicant who entered on a Subclass 995 (Diplomatic) visa or as a qualifying special-purpose visa holder: that applicant satisfies Schedule 3 through criterion 3002, which requires the application within 12 months of the relevant day [cl 820.211(2)(d)(i)] [sch 3 3002].

Regional-visa holders: extra gates

An applicant who holds, or last held, a regional skilled visa faces two further gates before an 820 can succeed. There is a minimum hold time: a holder or former holder of a Skilled-Independent Regional (Class UX), 475, 487 or Class SP visa must have held it for at least two years [Sch 1 item 1214C(3)(g)], and a 491 or 494 holder or former holder for at least three years [Sch 1 item 1214C(3)(h)], before the 820 application is valid. The applicant must also have substantially complied with the conditions of that regional visa, in particular its condition to live, work and study only in a designated regional area [cl 820.212]. These stop a regional-visa holder from side-stepping their regional obligations by moving straight onto a partner visa.