820 vs 309: Onshore vs Offshore Partner Visa

Everything else on this page follows from that.

Both are the temporary half of a two-stage application. The 820 pairs with the permanent subclass 801; the 309 pairs with the permanent subclass 100. One charge, one application, two decisions, in each case.

Where must you be when you apply, and when it is decided?

At lodgement, in the right country and nowhere else. Schedule 1 item 1214C requires an applicant for the Class UK visa to be in Australia but not in immigration clearance. Item 1220A requires an applicant for the Class UF visa to be outside Australia, and requires the application to be made at the same time and place as an application for the permanent Class BC visa.

At decision, both are relaxed. Clause 820.411 says the applicant may be in or outside Australia when the 820 is granted, but not in immigration clearance, and clause 309.412 says exactly the same for the 309. The location rule is a snapshot taken on one day — the day the application is made. The consequences of moving afterwards, however, are very different.

What does an onshore application give you that an offshore one does not?

A bridging visa, and with it the ability to stay.

A Bridging visa A under subclass 010 requires that the applicant made a valid application, in Australia, for a substantive visa of a kind that can be granted while the applicant is in Australia, that the application has not been finally determined, and that the applicant held a substantive visa when it was made. An 820 application satisfies all of that. A 309 application satisfies none of it, because it is made outside Australia.

The practical result is stark. An onshore applicant whose student, visitor or work visa expires next month keeps living in Australia lawfully, in the same house as their sponsor, until the partner visa is decided. An offshore applicant waits in another country with no entitlement to come here, and any visit has to be made on a separate visa assessed on its own criteria.

Can you work while you wait?

On the onshore track, it depends on what you held when you lodged. A Bridging visa A granted on an 820 application carries across whichever of the listed work-related conditions applied to the visa you held at the time of application — so a person who applied while holding a visa subject to condition 8101 (no work) receives a bridging visa subject to condition 8101, and a person subject to condition 8104 (no more than 40 hours a fortnight) receives the same limit. A further Bridging visa A can be granted where the Minister is satisfied the holder has a compelling need to work, and that visa carries no such condition. Once the 820 itself is granted, the Department says holders have full work rights and are protected by Australian workplace law. See work rights.

On the offshore track the question does not arise while the application is pending, because the applicant is not in Australia. Once the 309 is granted, clause 309.511 makes it a temporary visa permitting the holder to travel to, enter and remain in Australia until the permanent subclass 100 application is decided or withdrawn. Subdivision 309.6 imposes no work-related condition on a holder who satisfied the primary criteria.

What about travel, and what happens if an onshore applicant leaves Australia?

This is the trap that catches people who lodge onshore and then need to go home. A Bridging visa A permits the holder to remain in Australia. It does not permit re-entry. Section 82 of the Migration Act 1958 says a visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia. Board a flight out and the bridging visa is gone.

The 820 application itself is not affected — clause 820.411 expressly allows the applicant to be outside Australia at grant. What is affected is your ability to come back. The remedy is a Bridging visa B, applied for and granted before departure, which authorises travel and return within a specified period. See Bridging visa B and travel.

An offshore applicant has no such problem and no such protection. They can travel anywhere they already have the right to go, and none of it touches the 309. They simply cannot come to Australia on the strength of the application.

Medicare and the other practical differences

Once the 820 is granted, the Department says holders can apply for access to Medicare, can study at their own expense, and can attend free English classes through the Adult Migrant English Program if eligible. Before grant, access depends on the bridging visa and on rules administered by Services Australia rather than by the Department, so check directly rather than assuming. See Medicare on the 820 visa.

A 309 applicant living overseas has none of this until the visa is granted and they enter Australia. Whether a 309 holder can then access Medicare is a question for Services Australia, and this guide does not have a departmental statement on it to rely on.

Does the choice affect how the application is assessed?

Not on the law. Regulation 1.15A (married couples) and regulation 1.09A (de facto partners) both list the four matters the Minister must consider, and both apply on their face to the Class UF and the Class UK visa alike. Regulation 2.03A applies the 12-month de facto rule to both classes as well. Same test, same evidence categories.

What changes is what the evidence looks like. An onshore couple living together builds a shared lease, joint accounts and a common household almost by accident. An offshore couple is documenting a relationship conducted across a border, where the household matter in regulation 1.09A(3)(b) or 1.15A(3)(b) has to be addressed rather than assumed. Neither is disqualifying. See long-distance relationships.

On timing, no figure should be treated as your timeline. The Department says processing times vary, that applicants may experience longer processing times than expected, and that its processing time guide tool shows recently decided applications and is a guide only and not specific to any individual application. See 820 visa processing time.

Couples who are already apart

If the applicant is overseas now and the sponsor is in Australia, the 309 is usually the only application available, because the 820 cannot be lodged from outside the country. The alternative — obtaining a visa to travel to Australia and lodging the 820 here — introduces its own problems, because visitor visas commonly carry condition 8503, which must be waived before an onshore partner application can be made at all. See condition 8503 no further stay.

If the applicant is in Australia now and the couple is weighing a departure to lodge offshore — usually because of a Schedule 3 problem or the section 48 bar — the cost is time apart with no guaranteed way back. That is a decision to make with advice, not from a comparison table.

Can an applicant switch after lodging?

There is no conversion between the two. They are different visa classes with opposite location requirements, and nothing in the Regulations turns one into the other. Switching means withdrawing the pending application and lodging a fresh one from the correct side of the border, with a fresh charge. The Department says it will not refund the application fee if it refuses an application.

An application prepared by an Australian migration lawyer is more likely to succeed, and here the reason is specific: the location requirement is a validity question rather than a merits question, and a wrong turn is paid for twice. The points people miss are the ones that decide validity — a no further stay condition still in force, a substantive visa that lapsed before lodgement, or a departure that quietly ended a bridging visa. No one can promise an outcome.

What to do next

Work out which application you are actually able to make, then build the file for that one. If you are in Australia and your visa is clean, subclass 820 partner visa is the full guide. If you are outside Australia, or a condition on your current visa blocks an onshore lodgement, go back to comparing the partner visa options and work through the decision points before you spend anything.

Keep reading

820 vs 300 Prospective Marriage Visa

The prospective marriage visa (subclass 300) compared with applying for the 820 — who it is for, what it requires, and the reduced charge at the 820 stage.

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Married or De Facto: Which Should You Apply As?

What actually changes if you apply as a married spouse instead of a de facto partner — the 12-month rule, its exemptions, and the four matters that stay the same.

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Partner Visa vs Skilled Visa for Couples

Partner visa or skilled visa when the applicant could qualify either way - what each test actually depends on, how the costs are structured, and where each one ends.

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