Immigration Law
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Partner Visa (Offshore)

subclass 309/100

What is this Visa?

This Partner Visa - subclass 309/100 is for applicants who are outside Australia. There are 2 applications:

  1. subclass 309 is a provisional visa

  2. subclass 100 is a permanent visa

You lodge only one application for both the provisional and permanent visas and pay one application charge. Your application is processed in two stages, about two years apart. Some exceptions apply and you may be eligible to be assessed for the second stage earlier. You must remain outside at the time of application and also when the provisional - subclass 309 is granted. However, you can be in or outside Australia when the permanent - subclass 100 is granted.

If you wish to lodge an onshore Partner Visa, please read [Partner Visa - Subclass 820/801]

 

What is the Application Process?

There are 2 main applications to the Partner Visa:

stage 1: SPONSORSHIP APPLICATION

All applicants for a partner category visa must have a sponsor. The sponsor must be prepared to sponsor the visa applicant and any members of the family unit who are also included in the application and who are also migrating with the applicant. The sponsor is usually the person with whom the visa applicant has the fiancé, marital or de factor partner relationship.

+ What are the requirements to be a Sponsor?

  • be an Australian citizen, permanent resident or eligible New Zealand citizen
  • no criminal record involving violence towards children and women
  • be 18 years or over (if 16 or 17 and wish to sponsor someone above 18, the parent or guardian must be the sponsor)

+ What are the limitations to being a Sponsor?

  • Previously sponsored a partner or been sponsored as a partner
    • Previously sponsored 2 or more persons as a fiancé for migration, or
    • Sponsored another fiancé or partner within last 5 years
    • Were sponsored as a fiancé or partner within the last 5 years
    • Unless compelling circumstances exist warranting a waiver
  • Not be the holder of a Woman at Risk (subclass 204) visa that has been granted in the past 5 years and currently wishing to sponsor their former partner/ partner that they had at time of visa grant
  • Currently or previously a contributory parent category visa holder
    • If you have been granted a permanent contributory parent category visa on or after 1 July 2009, you are unable to sponsor a person for a partner category visa for 5 years from your visa grant date if you were in a married or de facto relationship with that person on or before the date you were granted the contributory parent category visa.
    • Exceptions exist e.g. compelling reasons

+ What undertaking must the Sponsor provide?

  • To provide adequate accommodation and financial assistance as required to meet your partner’s reasonable living needs
  • If applying for partner visa outside Australia, you will need cover this for the first 2 years.
  • If applying from within Australia then the partner would need to cover the 2 years following the grant of the temporary partner visa

stage 2: visa application

All visa applicants must:

  • outside of Australia

  • meet health and character requirements

  • meet Public Interest Criteria, such as, no debt to Commonwealth, hold a valid passport, etc

  • be sponsored by either a fiance, spouse or defacto partner who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen

    • if the relationship broke down after being granted the subclass 309, you may still get the permanent visa if you can show either family violence has occurred or you have access to a child related to the Sponsor

  • the applicant and the Sponsor must have a mutual commitment to a shared life as a couple to the exclusion of all others, where the relationship between them is genuine and continuing.

  • they live together or they do not live separately and apart on a permanent basis.

  • if an under 18 years old child is accompanying the application, written consent must be provided by the non-migrating parent or a court order.

Regardless of whether you lodge the Partner Visa application on the basis of being married, engaged to marry, defacto relationship, or same sex marriage, the Department of Immigration will collectively assess the following 4 factors:

+ 1. What can be used as evidence for the financial aspect of the relationship?

  • joint loan agreements for real estate, cars, major household appliances or any other agreements relating to finances or purchases (for example, property purchased by the parties as tenants in common)
  • operation of joint bank accounts - evidence that the accounts have been operated with reasonable frequency and for a reasonable period of time would be given more weight than just opening such accounts
  • pooling of financial resources, especially in relation to major financial commitments
  • legally binding financial obligations that one party owes to the other, for example, as guarantor for a loan, existing power of attorney (these can be specified to cover various things, such as financial and medical)
  • the basis of sharing day to day household expenses (for example, if each party is responsible financially for their own expenses only and expenses are not pooled).

+ 2. What can be used as evidence for the nature of the household?

  • joint ownership of residential property
  • joint residential leases
  • joint rental receipts
  • joint utilities accounts (electricity, gas, telephone)
  • correspondence addressed to either or both parties at the same address
  • shared responsibility for care and support of children
  • shared responsibility for housework.

+ 3. What can be used as evidence for the social aspect of the relationship?

  • Evidence that the relationship has been declared to other government bodies and commercial/public institutions or authorities and acceptance of these declarations by these bodies.
  • Statements of parents, family members, relatives, friends and other interested parties. Statements in the form of statutory declarations should be encouraged on the basis that, as a legal document, they carry more weight. (Note: The department provides a specific form for this purpose (form 888 Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application) however, any statement that meets statutory declaration requirements is acceptable).
  • Joint membership of organisations or groups, documentary evidence of joint participation in sporting, cultural, social or other activities.
  • Joint travel and plans for the future.
  • Whether the parties present themselves as a couple socially.

+ 4. What can be used as evidence for the nature of the commitment?

The Department of Immigration will regard the ‘nature’ of the partners commitment as requiring an assessment of the mutuality of their commitment to each other, having regard to (but not limited to) the four factors listed in the Regulations, namely:

  • the duration of the relationship
  • the length of time the parties have lived together
  • the degree of companionship and emotional support that the parties draw from each other
  • whether the parties refer to the relationship as for the long term.

Assessing the nature (mutuality) of the relationship in regard to the above components includes an assessment of:

  • the partners’ knowledge of each other’s personal circumstances (this could include background and family situation and could be established at interview) and
  • the evidence of intentions that the relationship be long term (for example, by the extent to which the partners have combined their affairs, and the extent to which they have provided for each other, such as being beneficiary to each other’s will and/or superannuation).
 

What We Like About This Visa?

This visa subclass provides opportunity for employer to access skilled and semi-skilled talents for temporary period. It is designed to stimulate the economy of Australia and support Australian businesses.

  • In 2018, we saw an offshore Partner Visa get approved in less than 1 month.

  • Love & Sex is not a requirement for this visa.

  • Costs can be saved through converting or lodging another subclass within the same Partner Visa program.

  • The law provides loopholes within the discretion of the Department of Immigration to overcome limitations, eg. Applicant can directly obtain PR, Sponsor has sponsored more than 2 people in the past, etc.

  • There are ways to add dependents even after the subclass 309 has been granted.

 

What Mistakes Do People Usually Make?

Our recent observation of visa refusal trends usually stem from a lack of understanding of the legal framework:

  • Providing pictures of holidays and messages between Sponsor and Visa Applicant. This does not meet any legal criterion.

  • A subclass 309 visa holder expires once the accompanying subclass 100 is refused.

  • A person is barred from applying for any other visas in Australia if their Partner Visa was refused.

  • Any mistake (including honest human error), leads to 3 years ban. Non-migrating dependents are also affected.

  • Failing to meet Schedule 1 legal requirements = invalid application. Therefore, legal checks must be performed on all visa applications.

  • Failing to meet ‘time of application’ legal criteria = incurable mistake (cannot be won on appeal). Therefore, legal checks must be performed on all visa applications.

 

What Questions Do Migration Agents Ask Our Accredited Specialists

  1. What visa can my client get if their subclass 100 was refused?

  2. My client lodged a subclass 309/100 and is now physically in Australia, how can they remain in Australia for the grant of the Partner Visa?

  3. Can an Australian sponsor their good friend under the Partner Visa program? There is no love, no sex, and they don’t live with each other.

  4. My client was refused a Partner Visa, he now wishes to reapply for another Partner Visa, I can’t find any part of the law that prevents them from re-lodging again. Where can I find this law?

  5. How does the new laws effective December 2018, affect my client’s ability to obtain social benefits?

 

Client Testimonials

….we call it Support Network

As navigating through the immigration law process may be difficult, our former clients have agreed to share their experiences through telephone chats, emails and meeting in person.

These are their stories…