Frequently asked questions

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 Once granted, the 820 ordinarily remains in effect until the 801 application is decided or withdrawn, subject to the other cessation events in the clause [cl 820.511].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)].

Validity under 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 820.211(2)]. Where the applicant's spouse has not turned 18, a parent or guardian of that spouse (aged 18 or over, and an Australian citizen, permanent resident or eligible New Zealand citizen) sponsors instead [cl 820.211(2)]. In the ordinary continuing-relationship case [cl 820.221(1)(a),(4)] a withdrawn sponsorship defeats the application; but where the sponsor has died or the relationship ended with family violence or a qualifying child, the defined alternatives can still carry it [cl 820.221(2)-(3)].

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, at least five years must have passed since the date they made that application [reg 1.20J(1)(c)].

The five years is measured from the date the earlier application was made up to the point the current sponsorship is decided. All three conditions can be set aside where there are compelling circumstances affecting the sponsor [reg 1.20J(2)]. 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 820, and the 300 and 309, not the permanent 801 or 100. 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 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 820.211(2B)]. A relationship declared by the Subclass 204 grant date is not caught by that undeclared-relationship limb. Unlike the offshore 309, the 820 clause carries no requirement that the applicant be male.

The health criterion

The ordinary 820 applicant must satisfy PIC 4007 [cl 820.223] at the temporary stage and again at the permanent stage [cl 801.223]; a former Subclass 300 holder who married and qualifies under clause 820.211(5) is exempt from that public-interest set at the temporary stage [cl 820.223(2)], and the permanent stage has its own carve-outs [cl 801.223(2)]. Only the significant-cost and access ground can be waived [PIC 4007(1)(c)] [PIC 4007(2)]; the tuberculosis ground [PIC 4007(1)(a)] and public-health or community-danger ground [PIC 4007(1)(b)] cannot. PIC 4005's cost ground has no waiver [PIC 4005]. Whether an examination completed for the 820 can be reused for the 801 is an operational assessment under current Departmental guidance; a further examination may be required depending on currency, scope and changed circumstances.

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, subject to a carve-out for certain migrating children [cl 820.224(2)], 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 820.224(1A)]. 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.

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.

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.