Applying for an Australian Partner visa can be an emotional and lengthy process. For many couples, the visa application represents the next step in building a life together in Australia. Unfortunately, rare and difficult circumstances arise where the Australian partner (the sponsor) passes away after the Partner visa application has been submitted but before it is decided. This situation raises many questions for the non-Australian visa applicant.
This article explains how a Partner visa may still be granted after a sponsor’s death, and the process involved.
What is the Partner visa?
Australia’s Partner visa program allows overseas nationals who are either the spouse or a de facto partner of a Australian citizen, Australian permanent resident, or eligible New Zealand citizen to be sponsored to live in Australia indefinitely.
The offshore version of the partner visa consists of both the:
- Subclass 309 (provisional) visa; and
- Subclass 100 (permanent) visa.
The onshore version of the partner visa consists of both the:
- Subclass 820 (provisional) visa; and
- Subclass 801 (permanent) visa.
Aside from the visa application, the Australian sponsor must also submit an application, confirm the relationship and commit to certain obligations.
If the sponsor dies during processing, though, this understandably raises the question of whether the Partner visa application can continue.
Does the Partner visa application automatically end?
Under normal circumstances, a Partner visa application cannot continue without a sponsor, as the visa approval is contingent on a genuine and continuing relationship with the Australian sponsor.
However, Australian migration law recognises that the death of the Australian sponsor can be particularly tragic and unfair for applicants who had applied for the visa, were in a genuine relationship with their sponsor, and would have continued to be if not for their sponsor’s passing. For this reason, there are legal provisions that could allow the visa application to continue and be approved despite no longer having a sponsor.
When can a Partner visa still be granted after the sponsor’s death?
The Department of Home Affairs may still grant a Partner visa if specific requirements are met. These provisions exist to cater for genuine applicants who would otherwise be unfairly disadvantaged by circumstances outside their control.
The requirements depend on whether you applied for the Partner visa from offshore (overseas) or onshore (in Australia), and whether you are still awaiting a decision on the provisional visa, or if the provisional visa is already approved.
If you are awaiting a decision on the offshore Subclass 309 (provisional) visa
The Department may grant the Subclass 309 visa if:
- the applicant was in a genuine and continuing spousal or de facto relationship with the Australian sponsor up until the sponsor died;
- the genuine and continuing relationship would have continued if the sponsor had not died.
If you are awaiting a decision on the offshore Subclass 100 (permanent) visa
The Department may grant the Subclass 100 visa if:
- the applicant holds the Subclass 309 visa;
- the applicant has entered Australia on the Subclass 309 visa or was already in Australia when it was granted;
- the Subclass 309 holder was the spouse or de facto partner of the sponsor until the sponsor died; and
- the Subclass 309 holder would have continued the relationship if the sponsor had not died
If you are awaiting a decision on the onshore Subclass 820 (provisional) visa
The Department may grant the Subclass 820 visa where:
- the applicant was in a genuine and continuing spousal or de facto relationship with the Australian sponsor up until the sponsor died;
- the genuine and continuing relationship would have continued if the sponsor had not died;
- the applicant has developed close business, cultural or personal ties to Australia.
If you are awaiting a decision on the onshore Subclass 801 (permanent) visa
The Department may grant the Subclass 801 visa where:
- the applicant holds a Subclass 820 visa;
- the Subclass 820 holder was the spouse or de facto partner of the sponsor until the sponsor died;
- the Subclass 820 holder would have continued the relationship if the sponsor had not died; and
- the Subclass 820 holder has developed close business, cultural or personal ties to Australia.
Generally, Partner visa applicants who can demonstrate that they were in a genuine and continuing relationship with their spouse or de facto until the death, and would have continued to be can still be granted the Partner visa. In any case, each case is assessed individually, and outcomes vary depending on the available evidence and circumstances.
What if I had married my partner as a Prospective Marriage visa holder?
In circumstances where the applicant was:
- granted the Prospective Marriage (Subclass 300) visa;
- travelled to Australia and validly married the Australian sponsor; and
- the Australian sponsor died before the Subclass 300 holder was able to apply for the onshore Partner (Subclass 820/801) visa;
The Subclass 300 holder may still be able to be granted the onshore Partner (Subclass 820/801) visa where they demonstrate they:
- would have been met the requirements for the Partner visa, had the sponsoring partner not died; and
- have developed close business, cultural or personal ties to Australia.
What are applicants required to do if their sponsor passes away?
If a sponsor dies while a Partner visa application is being processed, the visa applicant must notify the Department of Home Affairs as soon as possible.
A notification can be made by:
- submitting a Notification of Relationship Cessation in ImmiAccount; or
- if you are having difficulty on ImmiAccount, completing the Partner Processing Enquiry Form.
What documents should I provide to show I was in a genuine and continuing relationship, and would have continued the relationship had my sponsor not died?
To evidence that the visa applicant and sponsor were in a spousal or de facto relationship that was genuine and continuing up until the sponsors death, and would have continued but for their death, visa applicants should provide:
- death certificate of the sponsor;
- marriage certificate or de facto certificate;
- evidence that the spousal and de facto relationship was ongoing till the sponsors death including household evidence, financial evidence, social evidence, and evidence of the nature of your commitment;
- evidence of future plans of the relationship had the sponsor not died, to show it would have continued past their death;
- household evidence may include:
- plans to purchase property;
- mortgage / property title documents;
- updated lease agreements / utility bills;
- financial evidence may include;
- major assets, including property, cars, and loans;
- joint liabilities;
- pooling of financial resources, including joint bank accounts;
- social evidence may include:
- updated Form 888 Supporting Statements from family and friends;
- updated photos;
- upcoming events, such as joint invitations or booked travel;
- commitment evidence may include:
- a statement on the nature and duration of the relationship;
- correspondence such as text messages, emails, phone calls;
- any children from the relationship and care arrangements.
Because the sponsor is no longer able to provide supporting information, the Department may rely heavily on documents already submitted or additional evidence provided by the applicant.
Our Partner visa document checklist may act as a helpful guide.
What documents should I provide if I have to show close ties to Australia?
Under the circumstances, both the provisional Subclass 820 and permanent Subclass 820 visa requires an applicant to evidence that they have developed close business, cultural or personal ties to Australia.
Business ties
To demonstrate business ties, an applicant may provide evidence of:
- business ownership that operates in Australia;
- the applicants ongoing and active interest in the business;
- the nature and extent of business activities;
- the extent a Partner visa refusal would cause economic hardship to the business.
Cultural ties
To demonstrate cultural ties, an applicant may provide evidence of:
- membership of cultural ties in Australia such as the arts, music, or literature;
- extent the applicant participates or contributes to cultural activities in Australia.
Personal ties
To demonstrate personal ties, an applicant may provide evidence of:
- close relationship with family and/or friends in Australia;
- any carer responsibilities for children of the relationship or the sponsors children;
- regular and ongoing contact of the relationships;
- extent of residence in Australia;
- degree of support / emotional ties from relatives / friends in Australia.
How can Hannan Tew Lawyers help?
The death of the Australian sponsor during a Partner visa application is an extremely difficult situation. While the loss of the sponsor can affect the visa requirements, Australian migration law does provide an opportunity for the application to continue.
If the Department is satisfied that the relationship was genuine and ongoing prior to the sponsor’s death, they may still grant the visa based on the evidence and compassionate circumstances involved.
If you find yourself in this situation, seeking professional advice can help you understand your options and navigate the process with greater clarity.
An experienced immigration lawyer can assist with:
- assessing whether the visa application may still succeed;
- preparing submissions to the Department;
- gathering supporting evidence;
- submitting the notification and responding to Department requests for information.
Obtaining early advice can help ensure the application is presented clearly and that all relevant factors are considered.
You can learn more about our services on our homepage. If you would like tailored advice, please contact us or book an initial consultation.
You can also subscribe to our Australian immigration newsletter to stay up to date with the latest immigration news.
