Ms Wang is from Shanghai. She has lived with her Australian citizen boyfriend in Melbourne for more than a year and is currently in Australia on a student visa. She wants to know whether to lodge an onshore 820/801 partner visa or return to China and lodge a 309/100. The short answer: both visas apply the same test of a genuine and continuing relationship and carry the same government application charge. The main differences are where you must be when you lodge and when the visa is granted, and whether you can live, work and travel in Australia while you wait.

Key points

• The 820/801 must be lodged and granted while you are in Australia; the 309/100 must be lodged and granted while you are outside Australia.
• Both are two-stage visas: a temporary visa first (820 or 309), then the permanent stage (801 or 100) is assessed about two years later. One application charge covers both stages.
• You can apply on the basis of a registered marriage or a de facto relationship; de facto partners generally need to have lived together for 12 months before lodging, unless an exception applies.
• The Department assesses genuineness across four areas: finances, the household, social aspects and mutual commitment.
• Common refusal reasons include thin or inconsistent evidence, sponsor limitations, a no further stay condition, and failing the health or character requirements.

Main differences between onshore 820/801 and offshore 309/100

Onshore (820/801): you must be in Australia when you lodge. If you hold a substantive visa at the time, you will usually be granted a Bridging Visa A, which lets you remain lawfully once your current visa expires and generally lets you work. However, a Bridging Visa A does not allow you to leave and come back; you need a separate Bridging Visa B to travel. If you do not hold a substantive visa when you lodge, you will usually also need to meet the stricter Schedule 3 criteria, which is a major risk point for onshore applications.

Offshore (309/100): you must be outside Australia both when you lodge and when the 309 is granted. While waiting you may apply for a visitor visa to visit your partner, but you must be offshore at the time of grant. Once granted, you can live, work and study in Australia. For people currently in Australia whose visa carries a no further stay condition or whose visa history is complicated, an offshore application is sometimes the safer route.

The government application charge is the same for both visas and is usually adjusted each July; check the Department's fee estimator before lodging. The permanent stage (801 or 100) is generally assessed about two years after the original application, and you will need to provide up-to-date evidence that the relationship is continuing.

Proving a genuine relationship: four types of evidence

Under the Migration Regulations 1994, the Department weighs the following four areas together. No single item is mandatory, but the more complete and consistent the evidence, the more persuasive the application.

• Financial aspects: joint bank accounts, shared rent or mortgage, jointly paid bills, insurance policies naming each other as beneficiaries.
• Nature of the household: proof of a shared address (lease, mail), and how household and childcare responsibilities are shared.
• Social aspects: photos and itineraries of weddings, gatherings and travel together, how family and friends see you as a couple, and Form 888 declarations from Australian citizens or permanent residents.
• Nature of commitment: how the relationship developed, contact records during periods apart, joint plans for the future, and personal statements written by each partner.

Documents in Chinese, Malay or other languages need proper English translations. WeChat chat logs and transfer screenshots can support the application, but select representative, dated examples rather than submitting large volumes.

Common reasons for refusal

• Insufficient relationship evidence, or inconsistencies in the partners' statements, dates or addresses that raise doubts about genuineness.
• A de facto couple has not met the 12-month cohabitation requirement and no exception applies (such as a relationship registered with a state authority).
• Sponsor limitations: for example, the sponsor has previously sponsored other partners, or came to Australia on a partner visa themselves within the restricted period; certain criminal records of the sponsor can also affect applications involving children.
• An onshore applicant holds condition 8503 (no further stay) without a waiver, or must meet Schedule 3 but cannot.
• The applicant or a family member fails the health or character requirement, or false or misleading information has been provided.

If an onshore partner visa is refused, you can usually apply to the Administrative Review Tribunal (ART) for review, but the time limit is short, so seek advice as soon as you receive the decision.

Pre-lodgement checklist

• Confirm where you will be when you lodge and whether your current visa carries condition 8503 or other restrictions.
• Check whether the sponsor has sponsored a partner before, or came to Australia on a partner visa.
• Organise documents under the four evidence categories and check that dates and places in both statements match.
• Arrange police certificates and health examinations, and have non-English documents translated.
• If you need to travel while waiting, plan ahead for a Bridging Visa B or a visitor visa.

Frequently asked questions

Is the 820 or the 309 processed faster?

Processing times vary with each case and the Department's workload, so there is no fixed answer. The choice between onshore and offshore should be driven mainly by your current visa status, whether you need to work in Australia, and your living arrangements while waiting, rather than speed alone.

We are not married and have lived together for less than 12 months. Can we apply?

Generally you need 12 months of cohabitation. However, if your relationship is registered in an Australian state or territory (such as a Victorian relationship registration), or other special circumstances apply, the 12-month requirement may be waived. Check whether this applies before lodging.

Can I travel home while on a bridging visa for my 820 application?

A Bridging Visa A ceases when you leave Australia and cannot be used to re-enter. If you need to travel, apply for and be granted a Bridging Visa B before departure, and return within the approved travel period.

What if we separate while waiting for the 801?

Generally, the end of the relationship means the permanent visa cannot be granted. However, in specified circumstances, such as where there is a child of the relationship, the partner has died, or family violence has occurred, you may still be able to continue. Seek advice promptly and tell the Department about the change in circumstances.

What are the requirements for Form 888 written by friends?

Form 888 must be completed by an Australian citizen or permanent resident, explaining how long they have known you and how they know you are a couple, with proof of their identity. The content should be genuine and specific, and different witnesses should not use identical wording.

Chua Tan Associates has practised in Melbourne since 1990 and advises on immigration law in Mandarin, Cantonese and English. Kin Wee Chua and Chit Thian Chua are both Law Institute of Victoria Accredited Specialists in Immigration Law. To discuss your visa situation, call 03 9602 3988 or contact us online. We can meet at our Melbourne CBD office or by video.

This article is general information only and is not legal advice.