The partner visa is created by two instruments: the Migration Act 1958 and the Migration Regulations 1994. The Act is the statute passed by the Parliament; the Regulations are made under it and carry the detail. Everything a case officer decides about a subclass 820 or 801 application is traceable to a numbered provision in one of them.
The pages below are the citation layer of this guide. The rest of the site explains what the rules mean in practice; these pages show you the words, so you can check any statement here — or anywhere else — against the source.
Spouse and De Facto Partner: The Legal Definitions
The exact wording of section 5F and section 5CB of the Migration Act 1958, regulations 1.15A and 1.09A and their four matters, and regulation 2.03A on the 12-month rule.
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The Migration Regulations for Subclass 820, Explained
A clause-by-clause guide to subclass 820 in the Migration Regulations 1994 — Schedule 1 item 1214C, Part 820 of Schedule 2, and Part 801 in brief.
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How Home Affairs Policy (PAM3) Guides Partner Visa Decisions
What the Procedures Advice Manual is, why it is not law, how a delegate must still apply the Migration Act and Regulations, and how the Tribunal treats departmental policy.
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Partner Visa Statistics and Program Planning Levels
Where partner visa statistics and Migration Program planning levels are published, what lodged, granted and on hand mean, and why a backlog is not a processing time.
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Partner Visa Fee History
How the partner visa application charge is set, why it changes on 1 July, what it is now, and how to look up the exact amount that applied on any past date.
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From the AAT to the ART: What Changed for Partner Visas
The Administrative Review Tribunal replaced the AAT on 14 October 2024. What changed for partner visa reviews, what did not, and why regulation 4.10 no longer applies.
Read the guide →What the Migration Act 1958 does
The Act does four things that matter to a partner visa applicant.
It defines the relationship. Section 5F defines spouse and section 5CB defines de facto partner, and both allow the Regulations to say how the conditions in those definitions are determined. Those two sections are the foundation of every partner visa decision. See the legal definitions of spouse and de facto.
It tells the Minister when to grant a visa. Section 65 provides that, after considering a valid application, the Minister "if satisfied" that the health criteria and the other prescribed criteria have been satisfied, and that the grant is not prevented by another provision, "is to grant the visa", and "if not so satisfied, is to refuse to grant the visa". There is no residual discretion to grant a visa to someone who does not meet the criteria, and none to refuse someone who does.
It imposes bars. Section 48 restricts further onshore applications by a person without a substantive visa who has had a visa refused or cancelled since last entering Australia, subject to exceptions the Regulations set out. That is the provision behind the section 48 bar.
It sets up review. Part 5 of the Act provides for review of migration decisions. Section 347 states the period for applying, section 347A states who may apply, and section 351 gives the Minister a personal power to substitute a more favourable decision for a Tribunal decision if it is in the public interest.
How the Migration Regulations 1994 are organised
The Regulations run to thousands of pages. The body of the Regulations (regulations 1.01 to 5.45) holds definitions and machinery; the schedules hold the criteria. For a partner visa, five schedules matter.
| Schedule | What it contains | Where the 820 appears |
|---|---|---|
| Schedule 1 | Validity requirements — the form, the charge and the circumstances in which an application can be made at all | Item 1214C, Partner (Temporary) (Class UK); item 1124B, Partner (Residence) (Class BS) |
| Schedule 2 | The criteria for each visa subclass, split into time of application and time of decision | Part 820 and Part 801 |
| Schedule 3 | Additional criteria for applicants who do not hold a substantive visa | Criteria 3001, 3002, 3003, 3004 and 3005 |
| Schedule 4 | Public interest criteria, which cover character, health, debt and related matters | PIC 4001, 4002, 4003, 4004, 4007, 4009, 4019, 4020 and 4021 |
| Schedule 8 | Visa conditions, identified by four-digit numbers | Condition 8503, the no further stay condition |
Schedule 1 is about validity: an application that does not meet the item is not a valid application at all, so there is nothing for the Department to decide. Schedule 3 applies only where the applicant does not hold a substantive visa, and clause 820.211(2)(d)(ii) requires such an applicant to satisfy criteria 3001, 3003 and 3004 "unless the Minister is satisfied that there are compelling reasons for not applying those criteria". The full walkthrough is on the subclass 820 regulations page below.
How to read a clause number
Migration numbering looks cryptic and is not. Four patterns cover almost everything you will see in a decision record.
- 820.211 — a clause of Schedule 2. The first three digits are the subclass. The fourth digit is the division:
.1interpretation,.2primary criteria,.3secondary criteria (for family members included in the application),.4circumstances applicable to grant,.5when the visa is in effect,.6conditions. Within the primary criteria,.21is the time of application group and.22the time of decision group. So 820.211 is the first time-of-application clause for subclass 820, and 820.221 the first time-of-decision clause. - 801.221(6) — the same system for subclass 801, with a subclause in brackets. Subclause 801.221(6) is the family violence and child-of-the-relationship route to the permanent visa.
- PIC 4007 — a public interest criterion in Schedule 4. It is applied to an 820 applicant because clause 820.223 says so, not because it applies on its own. PIC 4007 is the health criterion that carries a waiver power; PIC 4001 is character.
- Condition 8503 — a condition in Schedule 8. Conditions attach to a visa when it is granted and are listed in the grant letter and in VEVO.
Regulations in the body of the instrument are cited differently again: regulation 1.15A (spouse), regulation 1.09A (de facto partner), regulation 2.03A (the 12-month de facto rule). A "subregulation" is a numbered subsection of one of those, so regulation 1.09A(3)(a) is the financial-aspects limb of the four matters.
Key facts
A criterion that must be met "at time of application" is tested on the day the application was validly made and cannot be fixed later. A criterion that must be met "at time of decision" is tested on the day the Department decides. Partner visas have criteria of both kinds, which is why evidence that stops at lodgement is a problem.
Ministerial directions
Section 499 of the Migration Act allows the Minister to give written directions to a person or body having functions or powers under the Act. A person or body "must comply with a direction", but a direction cannot be inconsistent with the Act or the Regulations, and directions are tabled in the Parliament.
For partner visas the direction that bites is the one on family visa processing priorities: the Department of Home Affairs says partner applications are processed in accordance with Ministerial Direction 117. A direction of that kind changes the order in which applications are dealt with, not whether one succeeds. See 820 visa processing time.
Departmental policy
Below the legislation and the directions sits policy: the Department's internal guidance to its own officers, the best known part of which is the Procedures Advice Manual (PAM3). Policy explains how the Department reads a criterion and what evidence it expects. It is not law, a delegate must still decide each case on the Act and the Regulations, and a Tribunal is not bound by it. What it is worth is that it is a reliable guide to what the Department will ask for. See Home Affairs policy.
Review and the courts
If an 820 or 801 application is refused and there is a right of review, the review is a merits review at the Administrative Review Tribunal, which replaced the Administrative Appeals Tribunal in October 2024. On merits review the Tribunal decides the case again for itself and may affirm, vary, or set aside the decision — substituting its own or remitting the matter to the Department. The time limits are in section 347(3) of the Act and are short. See appealing at the ART and the move from the AAT to the ART.
The courts do something different. On judicial review the Federal Circuit and Family Court of Australia does not decide whether the outcome was right; it decides whether the decision was made according to law. If it finds a legal error it sends the matter back, and the Tribunal decides again.
Why the law is hard to use alone
Reading the provisions is not the same as applying them. The criteria cross-refer constantly — Part 820 sends you to Schedule 3, Schedule 3 to definitions in regulation 1.03, Schedule 4 to an instrument made by the Minister — and a single word such as "unless" in clause 820.211(2)(d)(ii) carries an entire body of argument. An application or a review prepared by an Australian migration lawyer is more likely to succeed, because the work is identifying which criterion is actually in issue and addressing that one properly. No one can promise an outcome.
Unregistered agents
An unregistered agent who gives immigration assistance is acting illegally (Migration Act 1958 s 280). They carry no professional indemnity insurance, so if their mistake costs you a refusal, your fees or your pathway, there is no insurer to claim against. A practising Australian lawyer must hold that insurance.
What to do next
Start with legal definitions of spouse and de facto if you want the wording that every other page relies on, or the subclass 820 regulations if you want the criteria in the order a case officer works through them. If a decision has already been made in your case, check the deadline on your letter before you read anything else. For plain-language definitions of the terms used across this cluster, see the partner visa glossary.
Common questions
What law governs the 820 partner visa?
The Migration Act 1958 and the Migration Regulations 1994. The Act creates visas, sets out who may apply and who may review a decision, and requires the Minister to grant a visa if satisfied that the criteria are met. The Regulations create the subclasses and set the criteria. Subclass 820 sits in Part 820 of Schedule 2 to the Regulations and subclass 801 in Part 801.
What does a clause number like 820.211 mean?
The first three digits are the visa subclass. The next digit is the division of that Part, so 820.2 is the primary criteria, 820.4 is the circumstances applicable to grant and 820.5 is when the visa is in effect. The remaining digits identify the clause. Clause 820.211 is therefore the first clause of the time of application criteria for subclass 820.
Is departmental policy part of the law?
No. The Procedures Advice Manual guides officers of the Department in applying the Act and the Regulations, but it is not legislation. A delegate must apply the Act and the Regulations, and cannot treat policy as if it removed the discretion the law gives them.
Where can I read the legislation for free?
On the Federal Register of Legislation at legislation.gov.au, which publishes the authorised text of the Migration Act 1958 and the Migration Regulations 1994. The Regulations are very large and are published in several volumes, so the subclass 820 criteria and the schedules sit in different volumes of the same compilation.
Does the Tribunal make law?
No. The Administrative Review Tribunal reviews individual decisions on their merits and stands in the shoes of the decision-maker. The courts do not remake the decision either; on judicial review they decide whether the decision was made lawfully. Only the Parliament and the Governor-General acting on ministerial advice change the Act and the Regulations.