Last week MSM Legal’s Director, Catherine, answered some questions on ABC Radio in Adelaide about travel exemptions. Over the last few months, we have seen that there is a lot of frustration in the community about why some partner visas require their holder to obtain a travel exemption and why others do not.

If you hold a partner visa of any type, are currently offshore (not in Australia) and wish to enter Australia for the first time or return home to Australia, you need to understand whether you will need a travel exemption or not.

This article will clarify which partner visas require the holder to obtain a travel exemption before entering Australia, which do not and why this is.

Introduction

There are three types of partner visas:

  1. Partner Visa (Married/de-facto in Australia) subclass 820 (provisional) & 801 (permanent);
  2. Partner Visa (married/de-facto overseas) subclass 309 (provisional) & 100 (permanent); and
  3. Prospective Marriage visa (overseas) subclass 300 (sometimes referred to as the Fiancé / Fiancée Visa).

As we all know, there is currently a travel ban on traveling to Australia unless you fall into one of two categories:

  • you are in the category of people who do not require a travel exemption; or
  • you have an individual travel exemption.

The category of people who do not require a travel exemption include, amongst others, immediate family members of Australian Citizens and Australian Permanent Residents.

 

Definitions

As above, your status as an immediate family member of an Australian Citizen or an Australian Permanent Resident, will determine whether or not you require a travel exemption to travel to Australia (because if you are an immediate family member of an Australian Citizen/Permanent Resident, you do not need a travel exemption!)

Relevantly, the Department of Home Affairs’ definition of an immediate family member is (amongst others) a person who is a spouse or a de-factor partner of an Australian Citizen or Permanent Resident.

A spouse is a person who:

  • is legally married to another person in a marriage which is recognised under the Migration Act 1958;
  • has a mutual commitment with their spouse, to a shared life together to the exclusion of all others;
  • the relationship is continuing and genuine; and
  • they live together or, if they live separately, do not do so on a permanent basis.

A person is in a de-facto relationship with another if they:

  1. are not married;
  2. have a relationship that is genuine and continuing; and
  3. they:
    a. live together; or
    b. do not live separately/apart on a permanent basis; and
    c. are not related by family.

Using the above definitions, we can now understand how the travel ban situation has resulted in a situation where Prospective Marriage (subclass 300) visa holders are not automatically exempt from the need to apply for permission to enter Australia, whilst the other partner visa holders are automatically exempt.

Let’s break it down

Subclass 820, 801, 309 and 100 Partner Visas

Partner Visas (married/de-facto) subclasses 820, 801, 309 and 100 all have to demonstrate that they are in a married or de-facto relationship as defined above, in order to be granted these visas.

Married couples are married whether they applied for and were granted their visa in Australia or outside of Australia.  As part of the visa application process, they would have provided evidence that they usually do live together (rental receipts, joint mortgage documents etc.).

Thus, married couples holding a subclass 820, 801, 309 or 100 Partner Visa fall within the definition of spouse and are therefore also immediate family members meaning that they are automatically exempt from requiring a travel exemption to travel to Australia.

Equally, whether a couple in a de-facto relationship have applied for and been granted their visa in Australia or outside of Australia, they have met the definition of de-facto relationship when going through the visa process.

Thus, de-facto couples holding a subclass 820, 801, 309 or 100 Partner Visa fall within the definition of de-facto relationship and are therefore also immediate family members meaning they too are automatically exempt from requiring a travel exemption to travel to Australia.

Prospective Marriage (subclass 300) Partner Visas

In order to be granted a Prospective Marriage (subclass 300) visa, sometimes referred to as the Fiancé/Fiancée Visa, the applicant and sponsor only have to demonstrate an intention to marry.  On the facts therefore, they are not yet married so they do not meet the definition of ‘spouse’ and resultantly, are not an immediate family member for the purpose of circumventing the requirement for a travel exemption.

But, you might point out that whilst not married, a subclass 300 visa applicant can still be in a de-facto relationship as defined, right?  Well yes, but the crucial thing here is that, unlike the subclass 820, 801, 309 and 100 partner visa applicants, there is no requirement to prove a de-facto relationship exists in order to have the visa granted. Thus, if they are not necessarily in a de-facto relationship, they are also not necessarily an immediately family member which is why subclass 300 partner visa holders are not automatically exempt from the travel ban.

Rather problematically, once the subclass 300 visa has been granted, getting married offshore (outside of Australia) or commencing a situation whereby a de-facto relationship exists, is technically a breach of the 300 visa.

Therefore, a subclass 300 visa holder is left with no choice but to apply for an individual travel exemption, arguing one of the grounds required for it to be granted (most likely compelling/compassionate reasons).  For more on individual travel exemption applications, see our previous article here: https://www.msmlegal.com.au/australian-travel-exemptions-a-guide/

Final Thoughts

If and your partner are currently considering applying for a partner visa for one of you who is offshore and you believe that your relationship meets the definition of ‘de-facto’, it is worth seeking advice on whether it would be better to apply for subclass 309 over a subclass 300, to avoid this problem altogether. If you’d like advice or assistance in relation to any of the above, please feel free to contact MSM Legal for a confidential discussion, on the contact details below.

Author


Katie Wren, Senior Lawyer
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The information above is not exhaustive and is subject to change without notice. See the Department of Home Affairs website for current exemption criteria. The contents of this article are for reference purposes only. The contents do not constitute legal advice and should not be relied upon as such. Specific legal advice about your personal circumstances should always be sought separately before taking any action based on this publication or otherwise.