The Migration Regulations 1994 contain a specific provision for this, at both the temporary and the permanent stage, and it can be met. Nothing needs to be done in the first days, and there is time to get advice before writing to the Department.
What the law says
The provision for the permanent visa is clause 801.221(5) of Schedule 2 to the Migration Regulations 1994. An applicant meets its requirements if the applicant:
- is the holder of a subclass 820 visa; and
- would meet the requirements of subclause (2) or (2A) except that the sponsoring partner has died; and
- 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.
That is the whole clause. It contains no ties to Australia element, no hardship test and no requirement to show business, cultural or personal ties. Other parts of the Migration Regulations do use ties tests, so it is worth knowing that none of that applies here. The three elements above are all there is.
Subclause (2), which the second element points back to, is the ordinary permanent criterion: holding the 820, continuing to be sponsored, being the spouse or de facto partner of the sponsoring partner, and at least two years having passed since the application was made. The words "except that the sponsoring partner has died" switch off the parts of that subclause the death has made impossible.
A separate provision does the same work at the temporary stage. Under clause 820.221(2), an applicant for the 820 meets the criteria if they would continue to meet the applicable time-of-application requirements except that the sponsoring partner has died, and they satisfy the Minister that they would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died.
Key facts
The two-year wait does not have to be served. Subclause 801.221(7) provides that nothing in the two-year rule prevents the Minister approving the grant of a subclass 801 visa, less than two years after the application was made, to an applicant who meets the requirements of subclause (5). See when the 801 is assessed for how the ordinary timing works.
Telling the Department
The death has to be notified. Section 104 of the Migration Act 1958 requires a person to tell the Department in writing, as soon as practicable, when circumstances change so that an answer given on their application form is no longer correct. The sponsorship is one of those answers. Form 1022 Notification of changes in circumstances is the general form, and further detail on notification obligations is at telling Home Affairs about changes.
Two practical points. The Department will want the death certificate, and where an interim or coronial certificate is issued first, send what exists and follow up. And what you write now is read later as evidence about the state of the relationship at the date of death. Saying less, accurately, is better than saying more, approximately.
What happens to the temporary visa
The subclass 820 visa keeps running. Under clause 820.511 it permits the holder to stay until they are notified that the subclass 801 application has been decided, or until that application is withdrawn. A death does not cancel it, and it does not make you unlawful.
Watch out
Do not apply for another visa without advice first. The Department of Home Affairs is explicit that to be granted the permanent Partner visa you must hold the temporary 820 (or a subclass 445 visa), and that if you are granted any other visa you will no longer be eligible for the permanent Partner visa. A visitor or student visa taken out for reassurance can end the application you are trying to keep.
The evidence that supports the claim
The third element is the one that is actually assessed: that the relationship would have continued but for the death. That is a question about the state of the relationship at the date of death, and it is proved with the same material as any partner visa claim, brought up to that date.
What tends to carry weight:
- the ordinary four categories of relationship evidence — finances, household, social recognition and commitment — running up to the death rather than stopping a year earlier;
- documents created before the death that show the relationship was continuing and forward-looking: joint leases or loans, shared accounts, a will, superannuation or insurance nominations, medical records naming you as next of kin, travel or housing plans;
- statements from people who knew you both, describing the relationship as it was in the final period;
- evidence of your role around the death itself — as next of kin, as the person who arranged or was named on the funeral or estate documents, or on the death certificate.
What creates difficulty is a gap. If the file has nothing after an old lodgement, the claim has to be built out of whatever else exists. Evidence assembled steadily during processing is worth far more than evidence gathered afterwards, which is one reason the Department tells partner visa applicants to update their documents through ImmiAccount as they go.
Children included in the application
Children who applied with you are assessed under the secondary criteria, not under clause 801.221 at all. At the permanent stage those criteria require, among other things, that the person the child applied as a dependant of has been granted a subclass 801 visa. The practical effect is that the children's outcome usually follows yours: the claim you make carries the family.
Public interest criteria about the best interests of an applicant under 18 apply separately, and a child who is not yet part of the application cannot simply be added later. See including children in your application.
If you hold or held a subclass 300 visa
There is a separate path for people who hold, or have held, a Prospective Marriage (subclass 300) visa. Clause 820.211(7) allows an application by the holder of a subclass 300 visa where the sponsoring partner has died and the applicant satisfies the Minister that they would have continued to be the spouse or prospective spouse of the sponsoring partner if the sponsoring partner had not died — note "prospective spouse", which covers a couple who had not yet married. Clause 801.221(6AA) then carries that through to the permanent visa. See moving from a subclass 300 visa.
Why people in this position usually get help
These applications are decided on documents assembled in the weeks after a death, by someone who is also organising a funeral, dealing with an estate and often losing their home and income at the same time. The criterion is narrow and the rest of the file still has to hold together: the sponsorship approval question, the health and character criteria, the position of any children, and the response deadlines if the Department writes before deciding. Applications prepared by a migration lawyer are more likely to succeed here, largely because someone else does the assembling, and because a practitioner can receive the Department's correspondence so it does not arrive at your door. If a decision has already gone against you, the review time limit is strict — see appealing at the ART.
What to do next: read if the relationship ends for the other situations in which a permanent visa can still be granted after a relationship changes, including the child of the relationship provision and the family violence provisions.
Common questions
Can I still get permanent residence if my sponsor dies before the 801 is decided?
Yes, in defined circumstances. Clause 801.221(5) of Schedule 2 to the Migration Regulations 1994 allows the permanent Partner visa to be granted where the applicant holds a subclass 820 visa, would meet the ordinary criteria except that the sponsoring partner has died, and 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.
Do I have to prove ties to Australia?
Not under clause 801.221(5). The clause contains no ties to Australia element and no business, cultural or personal ties test. It has three elements only: holding the subclass 820 visa, otherwise meeting the ordinary criteria but for the death, and satisfying the Minister that the relationship would have continued. Other visa subclasses in the Migration Regulations do include ties tests, which is a common source of confusion.
Does the two-year wait still apply if my sponsor has died?
No. The ordinary rule is that at least two years must have passed since the application was made before the permanent visa is granted. Subclause 801.221(7) provides that nothing in that rule prevents the Minister approving the grant of a subclass 801 visa, less than two years after the application was made, to an applicant who meets the requirements of subclause (5) or subclause (6).
What happens to my temporary 820 visa in the meantime?
Nothing changes immediately. The subclass 820 visa permits the holder to stay until they are notified that the subclass 801 application has been decided, or until that application is withdrawn. A death does not cancel it. If the permanent visa is later refused, the 820 ceases when the applicant is notified of that decision.
What about my children who applied with me?
Children included in the application are assessed under the secondary criteria. At the permanent stage those criteria require, among other things, that the person the child applied with has been granted a subclass 801 visa. In practice the children's outcome usually follows the main applicant's, so the claim made for the main applicant carries the whole family.
Sources
Keep reading
Family Violence Provisions for Partner Visa Applicants
How the family violence provisions work for 820 and 801 applicants: what the Department must be satisfied of, the two ways a claim is made out, and the evidence.
Read the guide →
The Child-of-the-Relationship Provision
How clause 801.221(6) lets a partner visa be granted after the relationship ends where there is a child, custody or access, and a maintenance obligation.
Read the guide →