Subclass 801 — Partner

801.1—Interpretation

801.111

In this Part: sponsoring partner means:

(a) an Australian citizen, Australian permanent resident or eligible New Zealand citizen who was specified in the application for the Subclass 820 (Spouse) visa or Subclass 820 (Partner) visa as the spouse or de facto partner of the applicant; or

(b) for a person to whom the Minister has decided, under section 351 or 501J, or repealed section 417, of the Act, to grant a Subclass 820 (Spouse) visa or a Subclass 820 (Partner) visa—an Australian citizen, Australian permanent resident or eligible New Zealand citizen who was the spouse or de facto partner of that person at the time the visa was granted.

Note: Australian permanent resident, eligible New Zealand citizen and long-term partner relationship are defined in regulation 1.03, de facto partner is defined in section 5CB of the Act (also see regulation 1.09A), and spouse is defined in section 5F of the Act (also see regulation 1.15A).

801.2—Primary criteria

Note: The primary criteria must be satisfied by at least 1 member of a family unit. The dependent child of an applicant who satisfies the primary criteria is also eligible for the grant of the visa if the child satisfies the secondary criteria.

801.21—[No criteria to be satisfied at time of application.]

801.22—Criteria to be satisfied at time of decision

801.221

(1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6), (6AA), (6AB) or (8).

(2) An applicant meets the requirements of this subclause if:

(a) the applicant is the holder of a Subclass 820 visa; and

(b) the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

(i) the sponsoring partner; or

(ii) the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

(c) the applicant is the spouse or de facto partner of the sponsoring partner; and

(d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

(2A) An applicant meets the requirements of this subclause if:

(a) the applicant is the holder of a Subclass 820 (Partner) visa which the Minister has decided, under section 351 or 501J, or repealed section 417, of the Act, to grant to the applicant; and

(b) the applicant is the spouse or de facto partner of the sponsoring partner; and

(c) subject to subclauses (6A) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).

(3) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(2).

(4) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(3).

(5) An applicant meets the requirements of this subclause if the applicant:

(a) is the holder of a Subclass 820 visa; and

(b) would meet the requirements of subclause (2) or (2A) except that the sponsoring partner has died; and

(c) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died.

(6) An applicant meets the requirements of this subclause if:

(a) the applicant is the holder of a Subclass 820 visa; and

(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and

(c) either or both of the following circumstances applies:

(i) either or both of the following:

(A) the applicant;

(B) a dependent child of the sponsoring partner or of the applicant or of both of them;

has experienced family violence committed by the sponsoring partner;

(ii) the applicant:

(A) has custody or joint custody of, or access to; or

(B) has a residence order or contact order made under the Family Law Act 1975 relating to;

at least 1 child in respect of whom the sponsoring partner:

(C) has been granted joint custody or access by a court; or

(D) has a residence order or contact order made under the Family Law Act 1975; or

(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

Note: For special provisions relating to family violence, see Division 1.5.

(6AA) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant continued to meet the requirements of subclause 820.211(7) or (8).

(6AB) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant continued to meet the requirements of subclause 820.211(9).

(6A) Paragraphs (2)(d) and (2A)(c) do not apply to an applicant who at the time of making the application was in a long-term partner relationship with the sponsoring partner.

(7) Nothing in paragraphs (2)(d) and (2A)(c) prevents the Minister, less than 2 years after the application is made:

(a) refusing to grant a Subclass 801 visa; or

(d) approving the grant of a Subclass 801 visa to an applicant who meets the requirements of subclause (5) or (6).

(8) The applicant meets the requirements of this subclause:

(a) if the applicant held a Subclass 820 (Partner) visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa; and

(b) if the ART:

(i) has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa; or

(ii) has determined that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa.

801.223

(1) The applicant:

(a) subject to subclause (2)—satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and

(b) if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.

(2) Paragraph (1)(a) does not apply to an applicant who holds a Subclass 820 visa granted on the basis that the applicant satisfied the requirements of subclause 820.211(3), (4) or (5).

801.224

(1) Each member of the family unit of the applicant who is an applicant for a Subclass 801 visa is a person who:

(a) subject to subclause (3)—satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and

(b) if the person had turned 18 at the time of application—satisfies public interest criterion 4019; and

(c) satisfies public interest criterion 4020.

(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 801 visa is a person who:

(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and

(b) satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

(3) Paragraph (1)(a) does not apply to an applicant who meets the requirements of clause 801.321 as the holder of a Subclass 820 visa granted on the basis that the applicant:

(a) was the dependent child of a person who met the requirements of subclause 820.211(3), (4) or (5); and

(b) entered Australia as the holder, as a dependent child, of a visa of the same class as the visa held by that person.

801.225

If a person (in this clause called the additional applicant):

(a) is a member of the family unit of the applicant; and

(b) has not turned 18; and

(c) made a combined application with the applicant—

public interest criteria 4015 and 4016 are satisfied in relation to the additional applicant.

801.226

The applicant satisfies public interest criteria 4020 and 4021.

801.3—Secondary criteria

Note: A dependent child, or member of the family unit, of an applicant who satisfies the primary criteria is also eligible for the grant of the visa if the child or member of the family unit satisfies the secondary criteria and his or her application is made before the Minister has decided to grant or refuse to grant the visa to the applicant meeting the primary criteria.

801.31—Criteria to be satisfied at time of application

801.311

(1) The applicant meets the requirements of subclause (2) or (3).

(2) An applicant meets the requirements of this subclause if the applicant is:

(a) a dependent child of a person who has applied for a Partner (Residence) (Class BS) visa; or

(b) a member of the family unit of a person who:

(i) is the holder of, or has been the holder of, a Subclass 300 (Prospective Marriage) visa; and

(ii) has applied for a Partner (Residence) (Class BS) visa;

and the Minister has not decided to grant or refuse to grant a visa to the person.

(3) An applicant meets the requirements of this subclause if:

(a) the applicant is the holder of a Subclass 820 (Partner) visa which the Minister has decided, under section 351 or 501J, or repealed section 417, of the Act, to grant to the applicant; and

(b) the applicant is a member of the family unit of a person who:

(i) is the holder of a Subclass 820 (Partner) visa; and

(ii) has applied for a Partner (Residence) (Class BS) visa; and

(c) the Minister has not decided to grant or refuse to grant a visa to the person.

801.32—Criteria to be satisfied at time of decision

801.321

An applicant meets the requirements of this clause if:

(a) any of the following applies:

(i) the applicant is the holder of:

(A) a Subclass 445 (Dependent Child) visa; or

(C) a Subclass 820 (Partner) visa;

(ii) the applicant was the holder of:

(A) a Subclass 445 visa; or

(B) a Subclass 820 visa;

which ceased on notification of a decision to refuse a Subclass 801 visa to the person of whom the applicant is a dependent child or of whose family unit the applicant is a member;

(iii) the applicant is a person:

(A) who holds:

(I) a Subclass 445 (Dependent Child) visa; or

(II) a Subclass 820 (Spouse) visa; or

(III) a Subclass 820 (Partner) visa;

which the Minister has decided, under section 351 or 501J, or repealed section 417, of the Act, to grant to the applicant; and

(B) who, at the time the visa mentioned in sub-subparagraph (A) was granted, was the dependent child, or a member of the family unit, as the case requires, of another person who was the holder of a Subclass 445 (Dependent Child) visa, Subclass 820 (Spouse) visa or Subclass 820 (Partner) visa; and

(b) that other person has been granted a Subclass 801 visa.

801.323

(1) The applicant:

(a) subject to subclause (2)—satisfies public interest criteria 4001, 4002, 4003, 4004, 4007 and 4009; and

(b) if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.

(2) Paragraph (1)(a) does not apply to an applicant who holds a Subclass 820 visa granted on the basis that the applicant met the requirements of clause 820.311 as the dependent child of a person:

(a) who satisfied the requirements of subclause 820.211(3), (4) or (5); and

(b) who entered Australia as the holder, as a dependent child, of a visa of the same class as the visa held by that person.

801.324

If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.

801.325

The applicant satisfies public interest criteria 4020 and 4021.

801.4—Circumstances applicable to grant

801.411

The applicant must be:

(a) in Australia, but not in immigration clearance; or

(b) outside Australia;

when the visa is granted.

801.5—When visa is in effect

801.511

Permanent visa permitting the holder to travel to and enter Australia for 5 years from date of grant.

801.6—Conditions: Nil.