One of the most common questions we are asked goes something like: “My partner is coming/thinking about coming to Australia on a visitor visa. We want to apply for a partner visa soon. Should we make the application while they are in Australia, or after they go back?”
As with most things in life, the answer is not clear-cut, and will depend on your own situation. However, there are some important considerations, which we will outline for you.
Eligibility Criteria
First, eligibility criteria for the partner visa Onshore (Subclass 820) and partner visa Offshore (Subclass 309) are the same. For both, you need to establish that your relationship is genuine and lasting, and you have a commitment to your relationship into the future.
For the purposes of this article, we won’t discuss in detail the Prospective Marriage Visa (Subclass 300), except to say two things:
- This visa is only for applicants outside Australia (with a post-marriage track to a Subclass 820 onshore Partner Visa), and
- If you are not married and don’t meet the requirements of a ‘de facto’ relationship it can be a good option.
What’s the difference?
Back to the two Partner Visas.
As previously mentioned, the relationship criteria for an onshore or offshore Partner Visa Application are identical. The visa application charge is also identical (and very large).
The main difference between the Subclass 820 and 309 visas is quite simple; if you apply in Australia for a Subclass 820 visa, you are granted a Bridging Visa and allowed to remain in Australia until a decision is made on your partner visa application. Unless you are unlawful or hold a Bridging Visa C, D or E, you will most likely receive a Bridging Visa A – this will include the right to work and enrol in Medicare. With permission (in the form of a free application for a Bridging Visa B) you can also travel.
On the other hand, if you apply from offshore (for a Subclass 309 Partner Visa), you will not receive a bridging visa and must be outside Australia when your visa is granted. If you want to travel to Australia during processing, you will need another type of visa (e.g. a visitor visa).
The other main difference is processing time. While constantly in flux, at time of writing the benchmark processing time for an onshore application (Subclass 820) is 18 months; 5 months longer than the benchmark for an offshore application (Subclass 309).
Now, while that does seem significant, bear in mind that for those 5 months an onshore applicant can live, work and access Medicare – so perhaps it’s a relatively minor imposition.
So why would anyone apply from offshore?
Well, for a range of reasons, both personal and logistical.
Often, the timing just fits – it can take a long time to uproot your life in a foreign country, and the processing time for the partner visa does provide an opportunity to get your affairs in order.
Other times, applicants lodge from offshore out of necessity. Simply having an Australian partner does not entitle a person to travel to Australia. Unfortunately, some individuals, especially those from countries deemed by the Immigration Department to be ‘high risk’, can struggle to get visas to visit Australia. The main reason is the Department’s concern that they might overstay, or that their stated reason for visiting is not genuine.
Remember, if you are applying for a visitor visa, you are supposed to have an intention to leave Australia before that visa expires (‘Genuine Temporary Entry’) – this means that you aren’t supposed to be planning to make an application for another visa, including a partner visa, while you’re visiting.
For this reason, the Department may impose the dreaded ‘Condition 8503 – No Further Stay’. As it sounds, this condition prevents a visa holder from staying beyond the expiry of their current visa – practically, this prevents them from making any further visa application from inside Australia (other than a refugee visa).
If you have Condition 8503 on your visa, and are unable to have the condition waived by the Department, you will need to leave Australia and make an application from outside Australia for the Offshore Partner Visa (Subclass 309).
Which Visa is Right for Me?
Which approach is best for you will depend on your circumstances, and whether you are in fact eligible to apply for either the Onshore or offshore partner visa australia.
Naturally, if you’re only eligible for the Offshore Partner Visa (Subclass 309), your decision is simple. Just remember that you need to also be offshore in order for the visa to be granted to you.
The rules around Bridging visas, including how a Bridging Visa will interact with your existing visa (if you have one) can get complicated. Additionally, the question of work rights is not always straightforward. For some clients, even those in Australia and eligible to make an application for the Onshore (Subclass 820) Partner Visa, the better option is to leave and lodge their application from overseas.
Whichever way you ultimately decide to go, make sure you’re 100% certain in advance you will be successful – the application fee is way too hefty to put at risk!
