Being in Australia at Lodgement and at Grant

You must be in Australia when you lodge a subclass 820 application, and so must every family member applying with you. You may be in or outside Australia when the visa is decided. Confusing the two is how people either lodge an application that never existed or cancel a trip they did not have to cancel.

Where the requirement comes from

The subclass 820 sits inside the Partner (Temporary) (Class UK) visa class. Schedule 1 to the Migration Regulations 1994 sets out what a valid application for that class requires, and item 1214C says two things:

• the application "must be made at the same time and place as an application for a Partner (Residence) (Class BS) visa" — the class that contains the permanent subclass 801; and
• "Applicant must be in Australia, but not in immigration clearance."

Item 1124B, which governs the Class BS half of the same lodgement, says the same. So both halves of the one partner visa application carry the requirement, and both are made together. The Department of Home Affairs puts it in a line on its subclass 820 page: you must apply online and while in Australia.

What "in Australia" and "immigration clearance" mean

"In Australia" means physically present in the migration zone, which section 5 of the Migration Act 1958 defines as the states, the territories, Australian resource installations and Australian sea installations. An Australian embassy overseas does not help you; a holiday in New Zealand on the day you lodge does not either.

Immigration clearance is the carve-out at the other end. Under section 172 of the Act a person is immigration cleared once they have entered at a port, complied with the arrival requirements in section 166 and left that port with permission. In practice this only affects someone trying to lodge from inside an airport arrivals hall.

What that means when you lodge online

The 820 is lodged through ImmiAccount, so the moment of lodgement is a timestamp. Regulation 2.10C of the Migration Regulations fixes how that timestamp is read: an internet application is taken to have been made at the corresponding time in Australian Eastern Standard Time, or Australian Eastern Standard Time incorporating daylight saving in the Australian Capital Territory when that is in effect.

Two consequences follow. The date your application bears is an eastern-states date, which can differ from the date where you are sitting — relevant in Perth late in the evening, and for anyone counting to a deadline. And the only question for validity is where the applicant was at that instant. Pressing submit from a plane, or from a hotel overseas, is not a technicality the Department can overlook. See lodging in ImmiAccount.

What happens if you lodge from outside Australia

The application is invalid. Section 46(1) of the Migration Act says an application is valid "if, and only if" it meets the requirements prescribed under that section, and the Schedule 1 item is where those requirements live. Section 47(3) says the Minister is not to consider an application that is not valid.

An invalid application is not a weak application. It is nothing:

• no bridging visa flows from it, because a bridging visa attaches to a valid substantive visa application;
• it is not refused, so there is no decision and no right of review;
• your existing visa keeps running to its own expiry date, and if it ends you become unlawful; and
• you have to start again — in Australia — or apply offshore for the subclass 309 instead.

If a charge was taken on an application that turns out to be invalid, ask the Department rather than assuming; see paying and refunding the charge.

Family members applying with you

Each person included in the application is an applicant, so each has to satisfy the Schedule 1 requirement in their own right, and the Department states that family members applying with you must be in Australia too. A child overseas with grandparents on lodgement day is a problem for that child's application, not a paperwork gap — and the Department says family members cannot be added after the subclass 820 is granted. See including children in your application.

Can you travel after you lodge?

Yes, but only on a visa that lets you return, and the answer changes on the day your substantive visa ends.

While you still hold your substantive visa, you travel on whatever travel facility it gives you. When it ends, the bridging visa granted with the 820 application comes into effect — and under clause 010.511 of Schedule 2 a Bridging visa A permits the holder to remain in Australia. It says nothing about travelling to and entering Australia. The equivalent clause for a Bridging visa B, clause 020.511, expressly permits the holder to travel to and enter Australia until the time set in that clause. That is the difference between the two, and it is why a BVB has to be granted before you leave, not after. See Bridging visa A and Bridging visa B and travel.

The risk in the weeks right after lodgement is specific: your bridging visa exists but has not come into effect, your substantive visa may be close to expiry, and a trip that overruns its end date can leave you outside Australia with no right to return.

Do you have to be here when it is decided?

No. Clause 820.411 of Schedule 2 is one sentence: "The applicant may be in or outside Australia when the visa is granted, but not in immigration clearance." The Department's own summary agrees — be in Australia when you apply, in or outside Australia when the temporary visa is decided.

That flexibility is real but it is not an invitation. Processing can take a long time, the Department may ask for more information or an interview at any point, and everything it sends goes to your ImmiAccount.

If you are choosing between the 820 and the 309

The onshore requirement is often the deciding factor for couples who could go either way. The subclass 820 requires the applicant to be in Australia to lodge; the offshore subclass 309 is the mirror image. The 820 generally lets the applicant stay here while the application is processed, on a bridging visa with work rights, which is why couples already living in Australia choose it. A couple currently separated, or an applicant with no lawful way to be in Australia at lodgement, is usually looking at the 309. See 820 vs 309.

Why this is worth checking with a professional

An application prepared by an Australian migration lawyer is more likely to succeed on this point for an unglamorous reason: validity is binary, and it is decided by facts that are easy to get wrong in the week you lodge. Where you were at the timestamp, whether each child was in Australia, whether a bridging visa had come into effect before a trip, whether a travel facility existed at all — none of that can be argued about afterwards, and none of it appears as a question on the form. Nobody can promise an outcome, but an invalid lodgement wastes the whole application, and it usually happens to couples whose plans changed between paying and pressing submit.

What to do next

Fix your lodgement date first and build travel around it, not the other way around. Then work through the rest of the 820 visa requirements. If you do not hold a substantive visa, read Schedule 3 criteria and the section 48 bar before you lodge anything — those decide whether an onshore application is open to you at all.

Keep reading

Genuine and Continuing Relationship: How Home Affairs Assesses It

How Home Affairs decides if a partner visa relationship is genuine and continuing — the four matters in the Migration Regulations and what case officers look for.

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Spouse (Married Partner) Requirements for the 820

What married couples must show for the subclass 820 — the section 5F definition of spouse, a valid marriage, no 12-month rule, and why a certificate is never enough.

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De Facto Partner Visa 820: The 12-Month Rule

How the 12-month de facto rule works for the subclass 820, what counts towards the 12 months, and how time living apart is treated.

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