Subclass 309 visa is a great rescue visa + some tips on partner visas

By Lorenzo Boccabella, Barrister-at-law, specialist in migration law, published on 10 October 2024

The big thing about the subclass 309 (Partner(Provisional)) visa is that in all circumstances it can be granted onshore and offshore.

It is now a great rescue visa for anyone caught without a substantive visa in Australia or as a plan B.

As is often case persons on other visas find an Australian partner but also may find themselves not holding a substantive visa. Or they have had a visa refused in Australia and do not hold a substantive visa.

The subclass 309 visa is now available for a person holding a BVA, convert it to a BVB and then to go offshore and apply for this 309 visa and then immediately return to Australia. Of course one has to find a suitable visiting country, the obvious ones are NZ, Fiji (for Indian citizens), Bali or Malaysia (for those of Muslim faith).

In these circumstances, the person overcomes the effect of cl 820.211(2)(ii) [the onshore 820 Partner visa] which reads:

(d)  in the case of an applicant who is not the holder of a substantive visa — either: 

(ii)  the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

 Meeting those compelling reasons can be tricky and many cases have fallen over on that point.

The subclass 309 does not have that criterion, of course, and is therefore a work around.

Note the following:

309.4  Circumstances applicable to grant 

309.412 

The applicant may be in or outside Australia when the visa is granted, but not in immigration clearance.

I am not an expert on Medicare but on my reading of the rules because the subclass 309 visa is a joint application for the permanent residence subclass 100 visa, on return to Australia the person will be eligible for Medicare.

The other work around against cl 820.211(2)(ii) is going offshore and getting a short term visitor visa like an ETA or a subclass 659 eVisitor visa although the latter are only routinely granted to western Europeans and then returning on that visa. Again only useful for ETA eligible passport holders and western Europeans. However sometimes these visa are refused if there is something pending in Australia.

On return one would apply for the 820 and get a BVA when the visitor time comes to an end noting that the pending application for a subclass 820 visa may have restrictive work conditions.

I have written a separate paper on 820.211(2)(ii) on how to meet compelling reasons.

Finally, a most important technical point. For section 338(9) of the Migration Act under Reg 4.02(4)(saa) a subclass 309 visa refusal is now a decision which is prescribed. And under Reg 4.02(5)(raa) the only person who can be an applicant for review is the subclass 309 visa applicant NOT the sponsor.  An AAT application with the sponsor as the applicant may be regarded as an invalid application.

Some practice points about partner visas  

Some Immigration officials have told me that the biggest level of fraud in migration law is partner visas. In essence from an advocacy point of view this means that every means possible must be done to enhance the circumstances of the case. However I often see thousands of text messages lodged in failed partner visa applications. Clearly it is case of too many texts messages obscuring the vision, only a sample of things like these needs to be used with a note saying there are a lot more available to be produced if asked.

Things that influence a decision maker are the endorsement of the relationship by parents and siblings on both sides. Presenting themselves to friends as a couple is also important. Basics like wills and nomination as a beneficiary in superannuation are also important. Note it is not necessary that the partner be a 100% beneficiary but something like at least 30% would be necessary.

When there is a significant age gap, a big question often troubling decision makers is, will the younger person actually stay with the Australian partner after he or she gets the visa. So this question has to be shored up. One obvious question is - what of the natural aspiration to have children.

Sometimes if there may be any doubt, a DNA test should be done to confirm paternity of any children of the relationship.

Certainly at the AAT level, the interview with the parties is a bit like a quiz and one needs to prepare for that with a whole range of questions like, do you know the birthdays of the partner’s siblings and parents, what side of the bed do you each sleep on, what things does you partner like doing, what are their likes and dislikes, what did you both do together last week. There is nothing wrong with workshopping such things.

In essence in partner visas never leave anything up in the air.