Partner Visa 309 vs. 820: What is the Difference?

The Australian partner visa program is designed to facilitate partner reunification, allowing a de facto partner or spouse of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen to live in Australia permanently. The framework offers distinct onshore and offshore pathways to accommodate different circumstances. Partner visa subclasses 309 and 820 are the starting points for these journeys.

While both visas serve as the first part of a two-stage process that leads to permanent residency, they are not interchangeable. They differ significantly in their application requirements, particularly regarding your location at the time you apply. Understanding these distinctions is crucial for a successful partner visa application.

This guide provides a comprehensive legal comparison of the Partner visa subclass 309 and subclass 820 to help you determine the correct pathway.

The Australian Partner Visa Framework

Australia’s partner visa system is generally a two-stage process. You first apply for a temporary or provisional visa. Then, after approximately two years, you may be eligible to be assessed for the permanent visa, provided your relationship is ongoing and you meet all other criteria.

The main visa streams include:

• Partner Visa (Subclass 820/801 or 309/100): These are temporary and permanent partner visas for applicants who can provide evidence of a marriage or a de facto relationship. A de facto relationship must have existed for at least 12 months, unless it has been formally registered in an Australian state or territory.
• Prospective Marriage Visa (Subclass 300): This temporary visa is for partners who intend to marry in Australia. It is typically granted for 9-12 months, during which time the holder must marry their sponsor and then apply for the onshore 820/801 visa.

The Provisional Partner Visa (Subclass 309): The Offshore Path

The Subclass 309 visa is the provisional stage of the offshore partner visa application. It allows the applicant to enter and stay in Australia, work full-time, and study. It also grants access to Medicare. This provisional visa remains valid until a decision on the permanent partner visa (Subclass 100) is made.

Crucially, the applicant must be offshore (outside Australia) to apply for this visa. The application must be lodged and the visa must be granted while the applicant is outside Australia. This makes it the appropriate solution for couples where the applicant partner is living overseas.

While the wait can be challenging, our experienced migration lawyers can provide legal advice on options for temporary visas to visit Australia while the 309 application is being processed.

The Temporary Partner Visa (Subclass 820): The Onshore Path

The partner visa subclass 820 is designed for onshore applicants who are already in Australia, often on another valid visa like a visitor or student visa. The key feature of an onshore visa such as this is that it is typically accompanied by a Bridging Visa A (BVA). The BVA allows the holder to stay in Australia legally while their permanent partner visa (Subclass 801) is processed. This makes the 820 visa a popular choice for couples who are already residing in the country together.

After an 820 visa application is lodged, the associated BVA comes with study and work rights. Like the 309 visa, the 820 visa allows holders access to Medicare and the privilege to travel in and out of Australia, though travel may require applying for a different bridging visa.

However, this visa pathway has certain challenges. It must be lodged before your current substantive visa expires. Furthermore, visa conditions like ‘No Further Stay’ can prevent you from applying onshore. To avoid costly delays or eligibility issues, our migration lawyers can help identify the best course of action and provide legal assistance with your application.

Partner Visa 309 vs 820: Key Legal and Practical Differences

Applying for the right visa for your circumstances can be difficult when you do not know the key differences between these two partner visas. An experienced migration lawyer can assist you in evaluating your individual circumstances and visa options.

Location at Time of Application and Grant

The fundamental difference is location. For a 309 visa, you must be outside Australia when you apply. For an 820 visa, you must be in Australia when you lodge your application.

Bridging Visa Eligibility

No bridging visa is granted for subclass 309 because the application is lodged and processed offshore. You must remain outside Australia unless you are granted another type of visa to visit. If you apply for a subclass 820 onshore, a BVA is granted at the time of application. This allows you to remain in Australia legally after your substantive visa expires and during the waiting period.

Processing Times

Current estimates from the Department of Home Affairs suggest both the 309 and 820 take a significant amount of time to process. Individual cases can vary greatly based on documentation quality, the complexity of your case, and whether the Department requests additional information. Using a migration lawyer may not guarantee faster outcomes, but well-prepared, decision-ready applications can help to avoid unnecessary delays. Our lawyers understand how to present information and evidence clearly to the Department, which can reduce the likelihood of requests for further information.

Evidence of a Genuine and Ongoing Relationship

For both visa subclasses, you must provide substantial evidence proving you are in a genuine and ongoing relationship with your sponsoring partner. Australian law requires a holistic assessment of your relationship, focusing on your mutual commitment. This includes providing documents across four key areas: the financial aspects of your relationship, the nature of your household, the social aspects of your relationship, and the nature of your commitment to each other.

Health and Character Requirements

All partner visa applicants must meet Australia’s health and character requirements. This involves undergoing medical examinations and providing police clearance certificates from countries where you have lived for a significant period.

Cost and Government Fees

Both visas have a standard base application charge, with additional charges for dependents. This fee is subject to change by the Australian Government. The cost is the same whether you apply offshore or onshore. A refusal means this significant fee is not refunded. Getting it wrong is expensive, so many couples find the cost of a migration lawyer more than pays off by reducing avoidable errors.

Which Partner Visa Is Right for You?

The right partner visa depends largely on your current location, but that is just the start. You should ask yourself important questions. How long are you willing to be apart? Do you have a valid visa to enter or remain in Australia? Are there any conditions on that visa preventing another application? And how quickly do you need to start the process?

If you are already in Australia and eligible to lodge onshore, the 820 is generally more convenient and allows you to stay close to your partner. However, if you are offshore with no current visa to enter Australia, the 309 may be your only option.

Couples with complicated immigration histories, short de facto relationships, or limited documentation should consider speaking with a migration lawyer. They can help you avoid the common errors that lead to refusals, like not meeting the 12-month de facto relationship requirement or submitting insufficient evidence.

The Role of a Migration Lawyer

The requirements for a partner visa are complex, and the journey is unique for every applicant. Whether you live outside Australia and want to join your partner, or you are onshore and seeking permanent residency, the primary goal is reunification. However, securing a partner visa grant can be a difficult legal process, and professional guidance can be invaluable.

An experienced migration lawyer from Australian Migration Lawyers can help you choose the right pathway and prepare a robust application that meets all legislative requirements. We understand that the process can cause stress and anxiety, because a partner visa is not just a practical step but also involves significant personal considerations. You need expert legal support, and our lawyers can provide it by managing your application, compiling evidence, making legal submissions, and liaising with the Department on your behalf.

If your self-submitted application has discrepancies or mistakes that have caused delays, our lawyers can help rectify them to support the preparation of a complete and accurate application.

Conclusion: Making an Informed Decision

Both the Subclass 309 and 820 visas provide a path to build your life in Australia with your partner, but they suit different circumstances. You must think beyond just your location. Consider your visa conditions, urgency, documentation, and long-term plans. With high costs and complex legal requirements, this is not a process to take lightly.

Consulting a migration lawyer provides professional guidance and support through the entire application process. From strengthening your evidence to clarifying the legal framework, they can assist with presenting a well-supported application to maximise your prospects of success. As always, check the Department of Home Affairs website for official updates, and when in doubt, seek professional legal help.

Contact Australian Migration Lawyers for a consultation on your partner visa matter.