PARTNER VISA IF SPONSOR DIES BEFORE 820 VISA GRANT

Source: https://immi.homeaffairs.gov.au/change-in-situation/death-in-family

If your partner visa sponsor dies you must tell us as soon as possible

Complete the Notification of Relationship Cessation form in the ‘Update Details’ tab in ImmiAccount.

If you are having trouble completing this form in ImmiAccount​, complete the Partner Processing Enquiry Form.

You may still get a temporary Partner visa (subclass 820) and a permanent Partner visa (subclass 801) if:

• you have applied for a temporary Partner visa (subclass 820), and
• your de facto partner or spouse who sponsored your application has died, and
• you can prove that your relationship would have continued if your sponsor was still alive

Source: MRD Commentary – Partner visas – 2019

Death of sponsor exception
Onshore – Subclasses 820 and 801
The key requirements for the ‘death of the sponsor’ exception for the onshore Partner visas are that
the applicant:
• would continue to meet the spouse or de facto partner requirement except that the sponsoring
partner has died;
• satisfies the decision-maker that he/she would have continued to be the spouse or de facto
partner of the sponsoring partner if the sponsoring partner had not died; and
• has developed close business, cultural or personal ties in Australia.24
Offshore – Subclass 100
For the offshore permanent Partner visa the key requirements for the ‘death of sponsor’ exception are
that the applicant:
• would continue to meet the relevant spouse or de facto partner requirement except that, after
the applicant first entered Australia as the holder of the temporary visa, the sponsoring
partner has died;25 and
• satisfies the decision-maker that the applicant would have continued to be the spouse or de
facto partner of the sponsoring partner if the sponsoring partner had not died.26
22 Legislative and judicial powers in relation to the adoption of children, child protection and child welfare remain with the
States/Territories. It may, therefore, be possible that a State Court make a custody or maintenance order using those powers.
Such orders may be enough to fulfil the requirements of Item (A) and Item (E). For an example see Fitch v MRT [2004] FCA
1673.
23 See, for example, Ortiz v MIBP [2014] FCCA 2994 (Judge Howard, 23 December 2014). The Court found that the visa
applicant could not establish that he came within the exception outlined in cl.820.221(3)(b)(ii), given the existence of a Family
Court of Australia order that the applicant was only permitted to communicate with the child by cards and letters addressed to
the child care of the mother. This judgment was upheld on appeal in Ortiz v MIBP [2015] FCA 427 (White J, 7 May 2015).
24 cl.820.221(2), cl.801.221(5).
25 cl.100.221(3)(b).
26 cl.100.221(3)(c).
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AAT under FOI on
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7 Last updated/reviewed: 6 June 2019
The ‘death of a sponsor’ exception is therefore significantly different in the case of the offshore
Partner visa Subclass 100 (compared to the onshore subclasses) in the following respects:
• the exception only applies if the sponsoring partner has died after the applicant first entered
Australia;
• it is not a requirement that the spouse or de facto partner of the sponsoring partner have
close business, cultural or personal ties in Australia.

Threshold assessment of spouse or de facto relationship
In the context of the ‘death of a sponsor’ exception there is a specific requirement in the clause
containing the exception that the Minister (or Tribunal on review) be satisfied that the applicant would
have continued to be the spouse or de facto partner (as relevant) of the sponsor if the sponsoring
partner had not died.27 This means that the applicant must satisfy the decision-maker that the
relationship was, until the death of the sponsoring partner, a spousal or de facto relationship as
defined in the Act and Regulations as they stood at the relevant time.28
Generally the death exception is a time of decision criterion only, with the exception of the Subclass
820 Spouse visa. For the holder or former holder of a Subclass 300 (Prospective Marriage) visa,
where the applicant has married the sponsoring partner, the death of sponsoring partner provision
can be invoked at time of application.29 Clause 820.211(7)(d) requires that the applicant satisfy the
Minister that he/she would have continued to be the spouse of the sponsoring partner if the
sponsoring partner had not died. Therefore, the Tribunal must still assess the relationship in that
context at the time of application.
Close business, cultural or personal ties
The ‘close ties’ requirement only applies to onshore provisional and permanent Partner visa
Subclasses 820 and 801,30 and, except for Subclass 820 visa applications where the applicant is the
holder of a Subclass 300 visa,31 only as a time of decision criterion. The requirement is that the
applicant ‘has developed close business, cultural or personal ties in Australia’. There is no specific
case law that has considered this phrase in this context.
Department guidelines include an opinion on the meaning of this requirement.32 While the Tribunal
may consider Departmental guidelines regarding the interpretation of a legislative provision, it should
not treat the Department’s opinion as determinative in such matters.33 The guidelines suggest that in
assessing whether an applicant has developed close ties, officers should consider the extent to which
ties have formed and/or strengthened over time. However, it is important to note that nothing in the
words of the regulation suggests any specific temporal requirement, or degree of strength of the tie
beyond the requirement that it be ‘close’, and it would be an error of law to impose more stringent
standards than the language of the Regulations requires. As it is a time of decision criterion, it is
27 cl.100.221(3)(c), 801.221(5)(c), 820.211(7)(d) and 820.221(2)(b) – although note the slightly different language between the
offshore and onshore visa subclasses discussed above.
28 Generally speaking, the time of application. For further discussion on which definition is relevant to a particular matter, see
the MRD Legal Services Commentary: Spouse and de facto partner.
29 cl.820.211(7).
30 cl.820.221(2)(c), cl.801.221(5)(d). 31 cl.820.211(7)(e).
31 cl.820.211(7)(e).
32 Procedural Instruction – Sch2 Visa 820 – Partner – The UK-820 primary applicant – 19.5 Must have developed close ties (reissue
date 19/11/16).
33 For further information and relevant case law, see MRD Legal Services Application of Policy commentary, “Use of Policy and
Interpretative Guidelines in Exercise of Non-Discretionary Power”
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AAT under FOI on
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8 Last updated/reviewed: 6 June 2019
sufficient if the applicant has satisfactory evidence of relevant ties as at the date of the Tribunal’s
decision.