14. Partner visas allow non-citizens to enter and remain in Australia on the basis of their spousal or de facto relationship (opposite and same-sex) with an Australian citizen or permanent resident.[4] All applicants for a partner visa must be sponsored by an Australian citizen or permanent resident.[5]

15. Applications for partner visas are considered, in the first instance, by Department of Immigration and Citizenship (DIAC) officers. In the event of an unfavourable decision, applicants can apply for merits review of the visa decision to the Migration Review Tribunal (MRT).[6]

16. There is a three-stage process for people coming into Australia with the intention of marrying an Australian sponsor, and a two-stage process for those applying as a spouse or de facto partner of an Australian sponsor.[7]

The three-stage process

17. A non-citizen coming into Australia for the purpose of marrying an Australian sponsor can apply for a Prospective Marriage Visa (Subclass 300).[8] The visa allows the holder to enter and remain in Australia, for a nine-month period, within which the marriage must take place.[9] After the marriage, an application can be made for permanent residence on the basis of the spousal relationship via the two-stage process discussed below.

18. The three stages can be illustrated as follows:

Stage 1

Stage 2

Stage 3

Prospective Marriage Visa (Subclass 300)

Temporary Partner Visa (Subclass 820)

Permanent Partner Visa (Subclass 801)

The two-stage process

19. In all other instances—irrespective of whether the application is made onshore or offshore—a partner visa application is an application for both a temporary and permanent visa.[10] In the first stage, a temporary visa is granted for a period of two years based on the relationship. After this ‘probationary’ period, the relationship is reassessed and a permanent visa can only be granted if, among other things, the relationship is assessed as ‘genuine and continuing’.[11]

20. The two stages can be illustrated as follows:

Stage 1 (Temporary)

Stage 2 (Permanent)

Partner Visa (Subclass 820)–lodged onshore

Partner Visa (Subclass 801)

Partner Visa (Subclass 309)–lodged offshore

Partner Visa (Subclass 100)

21. All temporary partner visas, therefore, involve an assessment as to whether the relationship is ‘genuine and continuing’ at the time the application is lodged, and at the time of the decision to grant the visa. Permanent partner visas only involve an assessment as to whether the relationship is ‘genuine and continuing’ at the time of the decision to grant the visa.[12]

[4] See, generally, Department of Immigration and Citizenship, Fact Sheet 30: Family Stream Migration—Partners (2010) <http://www.immi.gov.au/media/fact-sheets/30partners.htm> at 13 December 2010. ‘Spouse’ is defined in Migration Act 1958 (Cth) s 5F and Migration Regulations 1994 (Cth) reg 1.15A; and ‘de facto partner’ in Migration Act 1958 (Cth) s 5CB, Migration Regulations 1994 (Cth) regs 1.09A, 2.03A.

[5]Migration Regulations 1994 (Cth) reg 1.20(2)(a). The sponsor undertakes, among other things, to assist the applicant, to the extent necessary, financially and in relation to accommodation for a two year period.

[6]Migration Act 1958 (Cth) s 347.

[7] See Immigration Advice and Rights Centre, Domestic/Family Violence and Australian Immigration Law (2009), 4–6 for a comprehensive outline of the different onshore and offshore categories, and the two- stage and three-stage visa processes.

[8]Migration Regulations 1994 (Cth) sch 2 cls 300.215, 300.216 require the applicant to establish that the parties genuinely intend to marry within the visa period and genuinely intend to live together as spouses.

[9] Ibid sch 2 cl 300.511.

[10] Applications are made at the same time and on the same form. See Department of Immigration and Citizenship, Form 47SP—Application for Migration to Australia by a Partner (2010) <http://www.immi.gov.au/allforms/pdf/47sp.pdf> at 13 December 2010. The definitions of temporary and permanent visas are set out in the Migration Act 1958 (Cth) s 30.

[11] Permanent visas can be granted before the two year waiting period if, at the time of application, the relationship is of five years or more; or two years or more if there is a dependent child of the relationship.

[12] See, eg, Migration Regulations 1994 (Cth) sch 2 cls 100.21, 801.21.