Visa 309/100 Partner Visa Overseas

The visa 309/100 lets the partner of an Australian, live in Australia permanently.

Visa 309&100 Application location

Partners, whether spouse or de facto (both same-sex and opposite-sex), of: 

• Australian citizens 

• Australian permanent residents or 

eligible New Zealand citizens 

who apply outside Australia for a permanent visa on the basis of that relationship. Application for both visas is made at the same time, using the same form. 

Two years wait out period for visa 309/100

Under two-stage partner visa arrangements, applicants apply on the one application form for both a provisional visa 309 and a permanent visa 100 at the same time.

In most cases, applicants are not eligible for a permanent visa until two years after their application.

This means that visa 309 holders are usually required to wait two years before their visa 100 application is able to be considered.

Usually, the officer will, immediately after deciding to grant the visa 309, undertake an assessment of the visa 100 application, and proceed to grant the visa 100 as well. 

Following the grant of the visa 309 and after the visa 309 holder enters Australia, a decision to grant the visa 100 at any time in the two-year wait out period.

Sponsorship

Same as visa 820&801, Sponsorship form 40SP, which the department requests be completed by the applicant’s sponsor, as usually their Australian partner.

The form 40SP, completed and signed by the visa applicant’s sponsor, should be submitted by the visa applicant with their visa application.

the form 40SP usually addresses those 

  • the Australian partner  genuinely intends to sponsor the applicant for the visa and 
  • the sponsor understands sponsorship obligations and undertakings and satisfies all relevant criteria (for example, that the sponsor has no family violence or characters issues)

Sponsors who need to be assessed as eligible New Zealand citizens must undergo standard health/character assessment for their latest entry to Australia

If applying prior to marriage 

The visa 309&100 is for the couple who are planning to marry outside Australia. If the couple plan to marry in Australia, the applicant should apply for a visa 300 Prospective Marriage visa.

The marriage must have taken place before the applicant can be granted a visa. And they are in an ongoing partner relationship with the sponsor.

long-term partner relationship

The processing time can be faster than 2 years.

It means a relationship between the applicant and partner, each as the spouse or de facto partner of the other, that has continued: 

• (a) if there is a dependent child —for not more than 2 years; or 

• (b) in the relationship—for more than 3 years. 

The two years wait out period does not apply to an applicant who was in a long-term partner relationship with their Australian partner. 

Holding visa 309 is a standard prerequisite for the grant of a visa 100

It requires applicants to wait at least 2 years from when the visa 309/100 application was made before the granted their visa 100 

If the person has previously held a 309 visa and this visa was canceled you have the rights for AAT review and the outcome of any merits or judicial review should have the result before finalizing the visa 100 application. 

Continued sponsorship 

Must still be the sponsor’s partner 

de facto partner 

De facto relationship 

(a) they have a mutual commitment to a shared life to the exclusion of all others; and 

(b) the relationship between them is genuine and continuing; and 

(c) they are living together; or 

(ii) do not live separately and apart on a permanent basis.


spouse 

Marriage relationship

a person is the spouse of another person (whether of the same sex or a different sex) are in a married relationship. 

the relationship between them is genuine and continuing; and 

(a) they are living  together

(b) do not live separately and apart on a permanent basis. 

If the partner relationship has finished since visa 309 grant 

whether having the permanent visa 100 granted after the relationship finished need to see

  • If the case involves (child) access or custody (or similar) rights 
  • Or if relates to claims of family violence committed by the applicant’s sponsoring partner. 

Australian case law must be regarded as if a child of both the applicant and their Australian partner is involved. 

Visa 100 decision review by AAT

The fact that an applicant’s visa 309 refused by the officer won’t affect the grant of a visa 100.

If a valid application to the AAT tribunal for a review and the AAT remitted the decision for reconsideration by the department. the original visa 100 can be granted from being overturned. 

Visa 100 decision “One fails, all fail”

The visa is to be granted to a person who meets all prescribed criteria and also their visa dependents ( children) if one fails, all fail.

It means that the applicants’ depend children should have also passed the character and health criteria.

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