Australian Immigration Article

When the 820 Visa May Not Be the Best (or Possible) Option

There is a common misconception that you should always try to enter Australia on a visitor visa first to apply for the partner visa onshore.

To be clear: If your partner can successfully obtain a Visitor Visa (Subclass 600), enter Australia, and validly lodge an onshore 820 partner visa, that is often an ideal scenario. It allows them to stay with you on a bridging visa while processing continues.

However, this pathway is not open to everyone. Here are four situations where the 309 Offshore Partner Visa is likely your strongest and sometimes only solution.

1. The “Genuine Visitor” Roadblock

This is the most frequent hurdle we encounter. Your partner is currently overseas and wishes to visit Australia to apply for the 820 visa onshore. However, to be granted a Visitor Visa (Subclass 600), they must satisfy the Department that they are a “Genuine Temporary Entrant.” This means they must prove they intend to visit Australia temporarily and then leave.

If your partner cannot satisfy this requirement perhaps due to strong ties to you in Australia and weak ties to their home country, the visitor visa may be refused.

If your partner cannot enter Australia, they physically cannot lodge a valid onshore 820 application. In this scenario, the 309 visa becomes the necessary mechanism to facilitate their entry. It creates a meaningful migration outcome when the visitor visa door is closed.

2. Onshore Status Issues (Overstays, Refusals, or Conditions)

Sometimes, your partner is already in Australia, but their current visa status prevents a valid or safe partner visa application. This often happens in two specific ways:

• Schedule 3 Criteria: If your partner has overstayed their visa, is on a Bridging Visa following a refusal or applied for another onshore application that is pending with little to no hope, or their substantive visa has ceased, they must generally meet or get a waiver of the “Schedule 3” criteria to apply for a partner visa onshore. This requires proving compelling and compassionate circumstances. The threshold for this is incredibly high. Failing to meet it leads to refusal, costing significant time, money, and effort. While some unique situations may satisfy these criteria, the decision to remain onshore to challenge Schedule 3 should not be made lightly.

• Condition 8503 (No Further Stay): Your partner may hold a valid visa (like a visitor visa), but it has condition 8503 attached. This condition strictly prohibits applying for another substantive visa while in Australia. Unless you can obtain a waiver first, an onshore 820 partner visa cannot be lodged.

In these “messy” situations, leaving Australia to apply for a 309 visa can “reset the board.” It allows you to apply without the burden of Schedule 3 or waiver requirements that would otherwise jeopardise your case.

3. The “Schedule 1 Problem” (Previous Partner Visa History)

This is a technical but critical rule. If you have previously applied for an onshore partner visa (Subclass 820) and it was refused, you generally cannot apply for another onshore partner visa while you are still in Australia, unless you first obtain a different substantive visa.

Migration regulations place a strict limit on applying for a second partner visa onshore if the first was refused. Obtaining another substantive visa while on a bridging visa is often challenging.

The 309 visa bypasses this restriction entirely because the application is lodged from outside Australia. While every case is unique, for those stuck in this specific legal bind, the offshore route is often the only valid way forward.

4. The “Settled Expat” Scenario

Not every 309 partner visa application is born out of visa trouble. Sometimes, it is simply the better lifestyle choice.

You and your partner might be living happily overseas perhaps you are working as an expat or have built a life together overseas. You know you want to move to Australia eventually, but not right now.

Applying for the 309 visa while you continue your lives overseas allows you to “queue” for Australian residency without disrupting your current careers or children’s schooling. It allows you to plan your move on your own terms.

(For couples affected by refusals or timing issues, the Australian Partner Visa offshore route can offer a more controlled pathway forward.)

The Strategic Benefits of the 309 Partner Visa

Choosing the offshore route offers distinct advantages that can bring direction to an otherwise turbulent process.

1. A Solution When Doors Close

As highlighted above, the 309 visa provides a valid pathway when the onshore route is blocked. Instead of fighting a losing battle in Australia on options with little hope of success, the 309 application allows you to focus on what matters most: the genuineness of your relationship.

2. Controlled Transition and Planning

Moving countries is a massive logistical undertaking. With a 309 application, your partner overseas can continue working, saving money, and organising affairs. It gives you both the time to sell property, finish employment contracts, and say goodbye to family and friends properly. You move to Australia when you are ready, not when a visa expiry date forces you to.

3. Eliminating “Visitor Visa Anxiety”

Trying to enter Australia on a visitor visa with the intention of applying for a partner visa can be stressful, especially if you have complex circumstances or a previous refusal. While applying for a Subclass 600 visa is a valid option for many, for others it carries risk.

Before proceeding with a “600 visa to 820 visa” strategy versus a “309 direct” strategy, it is vital to discuss all available options with a migration lawyer to see where you stand.

(Understanding the difference between Partner Visa 309 vs 820 can shape long-term migration outcomes for couples.)

Does Applying Offshore 309 Visa Mean We Are Separated Forever?

This is the biggest fear for every couple: “If we apply for the 309, does my partner have to stay away until it is granted?”

The short answer is: Not necessarily.

Just because you have lodged a 309 partner visa application does not mean your partner cannot visit you in Australia. In fact, many applicants successfully apply for a Visitor Visa (Subclass 600) after lodging their 309 application.

Because you have already lodged the partner visa, the Department can see your long-term intention is to follow the rules. This can sometimes make it easier to satisfy the decision-maker that the visit is genuine and that the applicant will abide by visa conditions while waiting for the permanent outcome.

Additionally, depending on the strength of your case and your partner’s history, the Department may grant a visitor visa that allows multiple entries, letting your partner spend time with you in Australia while the 309 processes in the background.

Note: Everyone’s situation is different. If you have previously been refused a visitor visa, this strategy requires careful consideration.

(Where a No Further Stay condition applies, offshore partner visa options may avoid unnecessary legal barriers.)

Making the Right Choice for Your Future (820 vs 309 Partner Visa)

Deciding between an onshore and offshore application is one of the first and most critical decisions you will make in your migration journey. What worked for your friend, or what you read on a forum, may not apply to your unique legal situation.

At Flow Migration Law, we look at the whole picture: your relationship history, your visa history, and your future goals.

Jay, our Principal Lawyer, brings over 8 years of dedicated experience in Australian immigration law. He understands that while the onshore route is often preferred, the “long way round” (offshore) can sometimes be the safest path to a secure future. If you are unsure which pathway offers you the best chance of success, or if you feel stuck with no options, we are here to map out a plan.

(With the Australian Partner Visa offshore pathway, couples can plan their future in Australia with greater certainty and direction.)