Which Partner Visa Applies?
| Situation | Subclasses |
|---|---|
| Applicant is in Australia | 820 (temporary) + 801 (permanent) — lodged together |
| Applicant is outside Australia | 309 (temporary) + 100 (permanent) — lodged together |
| Not yet married, planning to | 300 Prospective Marriage visa |
What the Department Looks For
The Department assesses four categories of evidence. Thin evidence in any one category can result in a request for more information — or a refusal.
1. Financial
Joint bank accounts, shared financial commitments, evidence of supporting each other financially, insurance.
2. Household
Shared lease or mortgage, joint responsibility for children, cohabitation evidence, shared utilities.
3. Social
How the relationship is viewed by others — statutory declarations from friends and family, photos together, travel, social media.
4. Commitment
Knowledge of each other's background and history, future plans, length of relationship, any periods of separation explained.
The 820/801 involves two decision points: a temporary stage decision (usually 12–24 months after lodgement) and a permanent stage decision (around 2 years later). Between the two, the Department often requests updated evidence that the relationship is ongoing.
De Facto Relationships — The 12-Month Rule
De facto couples generally need to have been living together in a genuine relationship for at least 12 months before lodging. Exceptions apply for registered relationships and couples who have a child together.
Family Violence Provisions
If a relationship breaks down due to family violence before the permanent visa is granted, the visa applicant may still qualify for the permanent visa under Australia's family violence provisions. This requires specific evidence — which can include police reports, intervention orders, statutory declarations, or medical records.
Owen Yang has managed cases involving these provisions. This is a sensitive area and all discussions are handled in confidence.
How We Prepare the Application
As your partner visa migration agent, we know applications are refused most often because the evidence doesn't meet the threshold across all four categories. We review your evidence before lodgement, identify gaps, help you organise statutory declarations from witnesses, and prepare the full submission.
We also advise couples where one partner has a previous visa issue — refusal, overstay, or condition breach — that needs to be addressed in the application.
Frequently Asked Questions
From our years of practice, we have seen this situation many times. The short answer is yes; you still can.
As per the Migration PAM, It states that it is possible for one party to satisfy the definition of spouse or de facto partner under Migration Act even if they are still legally married to someone else, as long as they can convincingly demonstrate to the department that they are permanently separated from his/her former relationship.
If you have had a visa refusal while you were in Australia and you no longer hold a substantive visa, you may be subject to the section 48 (s48) bar, which restricts you to applying only for certain prescribed visas while you remain in Australia.
Good news: an onshore Partner visa (subclass 820/801) is one of the visa classes prescribed under regulation 2.12, so an s48-barred applicant can generally lodge it in Australia.
The catch: Schedule 3 (the “28-day” issue)
Even if the Partner visa is available under s48, many applicants in this situation will also be assessed against Schedule 3 of the Migration Regulations. One key Schedule 3 timing criterion (often referred to as the “28-day rule”) is linked to how long it has been since you last held a substantive visa.
If you cannot meet the relevant Schedule 3 criteria, the Department can still proceed only if a waiver is granted, and the legal test is whether there are “compelling reasons” not to apply Schedule 3 to you (this is a high threshold and must be argued carefully with evidence).
A common strategy: consider an offshore Partner visa to avoid Schedule 3
Where Schedule 3 is likely to be a major risk, an alternative approach may be to depart Australia and lodge an offshore Partner visa (subclass 309/100). You would generally need to be outside Australia at the time of application.
However, we can still tackle this situation with a better solution. Since you are holding a Bridging Visa A, we can apply for a Bridging Visa B for you. Once you travel outside Australia, we can lodge an offshore Partner visa to avoid the need to rely on compelling and compassionate reasons. You can then travel back to Australia on the Bridging Visa B. Also, because the offshore Partner visa can be granted either onshore or offshore, we can use a bridging visa switch strategy linked to your offshore Partner visa. This means that even if your ART matter is finalised, you may still be able to remain in Australia while waiting for the Partner visa outcome.