I am in a relationship with an Australian but do not have a visa. Can I apply for a partner visa while onshore?

This is a question which seems to be asked quite frequently these days. The answer is that in some limited circumstances it may be possible for persons who are in a relationship with an Australian citizen, permanent resident or eligible New Zealand citizen and who do not have a current substantive Visa, to apply for a partner visa whilst onshore.

Generally speaking, in order for a partner visa application to be valid, the making of the application must comply with schedule 3 criterion 3001 of the migration regulations, which provide that the application must be made within 28 days of last holding a substantive Visa.

If the relevant schedule 3 criteria has not been met, it is necessary for a decision maker to determine if compelling reasons exist for not applying it. Compelling reasons relate to the hardship that can result if an unlawful noncitizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas.

Under policy, compelling reasons include the existence of an Australian citizen child or a long-standing partner relationship (taken to be at least 2 years) between an applicant and sponsor, at time of application.

The term ‘compelling’ is not defined in the legislation, however in a full Federal Court case it was said that in any view of the meaning of compelling ‘the circumstances must be so powerful that they leave the decision maker to make a positive finding that the regulation should be waived’. Policy states that the existence of a genuine relationship between an applicant and their sponsor is not sufficient to establish compelling reasons to waive schedule 3; however it is not prescriptive as to what circumstances do constitute compelling factors.

Another hurdle which applicants must overcome is that in addition to being able to demonstrate that there are compelling circumstances, it is also necessary to show that the failure to lodge a partner visa application whilst not holding a substantive visa was due to circumstances beyond the applicant’s control.

In summary therefore, whilst it is possible for persons who do not hold a current substantive Visa and who are in a partner relationship to lodge a partner visa application, it is necessary to be mindful of what is required to be shown in order to avoid a rejection.