Frequently asked questions

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309 carries the person while the permanent decision is pending; it runs until the 100 is decided or the application is withdrawn [cl 309.511].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 migration rule points to the Marriage Act

For the spouse basis the couple must be married under a marriage valid for the purposes of the Act [MA s 5F(2)(a)]. Whether a marriage is valid is not decided by the Migration Regulations: section 12 applies Part VA of the Marriage Act 1961 to that question [MA s 12]. So the substantive validity test lives in the Marriage Act 1961.

When a marriage is void

A marriage is void, and so cannot support the spouse basis however genuine the relationship, on five grounds [Marriage Act s 23B]: - bigamy: either party was already lawfully married to someone else at the time; - a prohibited relationship: between an ancestor and descendant, or between a brother and sister (whether of whole or half blood); - not validly solemnised: the marriage did not meet the formal requirements in section 48. Lack of actual celebrant authority is not automatically fatal: section 48(3) can preserve the marriage where either party had the required good-faith belief and the ceremony showed the required intention [Marriage Act s 48] [Marriage Act s 48(3)]; - no real consent: consent obtained by duress or fraud, a mistake as to identity or the nature of the ceremony, or mental incapacity to understand the marriage; or - under marriageable age: a party was under the marriageable age that section 11 sets at 18, without the court authorisation that section 12 allows for 16- and 17-year-olds [Marriage Act s 11] [Marriage Act s 12].

Foreign marriages

A marriage solemnised overseas is dealt with by the foreign-marriage recognition rules in Part VA of the Marriage Act, which section 12 of the Migration Act applies to the visa question: the marriage is recognised if it is valid under the law of the place where it was solemnised, subject to the exceptions in section 88D [Marriage Act s 88C] [Marriage Act s 88D]. Those exceptions mostly track the domestic void grounds (an existing marriage, a prohibited relationship, or absence of real consent), but the age exception is narrower and turns on whether a party was domiciled in Australia, and a marriage that is void under the foreign law is also not recognised. So a couple validly married abroad usually does not need to remarry in Australia, and same-sex marriages are recognised. A qualifying foreign marriage certificate is prima facie evidence of the marriage, but it is not conclusive: where validity is genuinely in question it remains open to assessment [Marriage Act s 88G].

Where the marriage does not hold up

If a marriage is void, the couple is not "married" for the visa. But the same relationship may still be run as a de facto claim [MA s 5CB], so a defective marriage is not necessarily the end of the application; it changes the basis, not necessarily the outcome.

The elements

A de facto partner is not married to the sponsor but has, with them, a mutual commitment to a shared life to the exclusion of all others, in a genuine and continuing relationship, and lives with them or does not live separately and apart on a permanent basis [MA s 5CB]. Two people related by family (a child or other descendant, including adoptive links, or people with a parent in common) cannot be de facto partners for this purpose [MA s 5CB(4)], and both partners must be at least 18, an age rule with no exception [reg 2.03A(2)].

The 12-month rule

Because this pathway leads to a permanent visa, the couple must generally have been in the de facto relationship for at least the 12 months ending immediately before the application [reg 2.03A(3)]. That is a minimum-history requirement, separate from genuineness: a genuine but short relationship still fails it unless an exception applies.

Exceptions to the 12-month rule

The 12-month requirement is set aside where: - the relationship is a registered relationship under a State or Territory law (within the meaning of the Acts Interpretation Act 1901) [reg 2.03A(5)]; - there are compelling and compassionate circumstances for the grant [reg 2.03A(3)]; or - the sponsor holds (or held) a permanent humanitarian visa and the de facto relationship was disclosed to Immigration before that visa was granted; or the sponsor is merely an applicant for such a visa, in which case no prior-disclosure condition applies [reg 2.03A(4)].

Registering the relationship is the usual way a couple together less than a year removes the barrier.

Living arrangements

The couple need not be living together at every moment; the test accepts that they may "not live separately and apart on a permanent basis" [MA s 5CB(2)(c)]. Periods apart for work, visa or family reasons are consistent with a de facto relationship, but they have to be explained, and the commitment shown to have continued through them.

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)].

The health criterion

The applicant must satisfy PIC 4007 [cl 309.225] at the provisional stage and again at the permanent stage [cl 100.222]. Its ministerial waiver is ground-specific: only the significant-cost and access ground can be waived [PIC 4007(1)(c)] [PIC 4007(2)], so a condition that would fail on cost alone can be excused, while the tuberculosis ground [PIC 4007(1)(a)] and the public-health or community-danger ground [PIC 4007(1)(b)] can never be waived. This is what distinguishes 4007 from the otherwise similar PIC 4005, whose cost ground carries no waiver at all [PIC 4005].

Family-unit health and non-migrating members

PIC 4007 is not tested on the applicant alone. Each member of the applicant's family unit must satisfy it, and this reaches a member who is not migrating with the applicant: a non-migrating family member must still meet PIC 4007, unless the Minister is satisfied that it would be unreasonable to require that person to be assessed [cl 309.228(2)]. So a family member left off the application, if they have a significant-cost health condition, can defeat the whole application unless that escape applies or the waiver is exercised.

Timing and validity

Health-examination timing and reuse are operational matters. The Department's current guidance should be checked to determine whether an examination is required, whether a recent examination can be reused, and when a new HAP ID or further examination is needed. A prior examination may be accepted where it remains suitable for the present assessment, but there is no categorical rule that one examination always covers both stages or that an applicant should never complete it before lodgement.

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].

Combined applications

A member of the applicant's family unit (most commonly a dependent child) can be included in the combined application [Sch 1 item 1220A(3)(d)] and be granted the 309, and then the 100, as a secondary applicant with the primary [cl 309.311] [cl 309.321] [cl 100.311] [cl 100.321]. Each included person must meet the public interest and special return criteria that apply to them [cl 309.228].

Member of the family unit

Who counts is set by the family-unit definition [reg 1.12(2)]: a child or stepchild of the applicant or of the sponsoring partner who is not married, engaged or in a de facto relationship, and who is 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 309, so a child near an age boundary can age out before the 309 is granted and needs their timing projected at the start. Once the child holds the 309, the permanent stage does not retest membership: the 100 requires only that the child still hold the 309 granted on that basis and that the primary be granted the 100 [cl 100.321], so ageing during the two-year wait does not lose them.

Adding a child after lodgement

Three separate mechanisms cover a child who is not on the original application: - 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 309 on a written request made before the decision [reg 2.08B]; - a spouse, de facto partner or dependent child can be added to the permanent 100 on a written request made before the decision [reg 2.08A].

Which one applies turns on the stage and the visa, so a late addition should be checked against these rather than assumed to be available.

A child born after the provisional grant

A child born after the 309 is granted, but before the 100 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 309, 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 outside Australia 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], after which the child can share in the 100.

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.