Immigration Lawyer for a Partner Visa: When You Need One

Do You Need a Lawyer for a Partner Visa in Australia?

Most partner visa applications do not need a lawyer. Neither the Migration Act 1958 nor the Migration Regulations 1994 requires an applicant or a sponsor to be represented, and a couple with a long, well documented relationship, a sponsor who has never sponsored anyone before, and a clean immigration history on both sides can usually prepare a complete application without legal help.

The applications that need a lawyer are the ones that carry a legal problem on top of the relationship. The relationship is only one of the criteria the delegate must be satisfied about. Every partner visa also turns on the applicant's immigration status at the time of application, the sponsor's eligibility to sponsor, the applicant's identity and immigration history, and a set of public interest criteria. A couple can be plainly genuine and the application can still be refused because one of those other criteria is not met.

That distinction matters because of how the Department decides these applications. There is no hearing at the primary stage. A delegate reads the documents on the file, applies the criteria in Schedule 2 of the Migration Regulations, and records a decision. If a criterion is in issue and the file does not answer it, the file loses. This is why the value of a lawyer on a partner visa application is not general reassurance. It is identifying which criterion is at risk and putting the material and the legal argument on the file before the decision is made.

The two-stage structure raises the stakes further. The onshore Subclass 820 partner visa is the temporary stage, and the permanent Subclass 801 is decided later, on the same file. The offshore Subclass 309 partner visa works the same way, with the permanent Subclass 100 following it. A problem created at the application stage does not disappear. It is still on the file years later, when the permanent visa is assessed.

The Situations That Change the Answer

Seven situations change the answer from no to yes. Each of them is a legal problem with its own statutory test, and in each of them the outcome depends on how the material is assembled and argued rather than on how genuine the relationship is.

• The applicant is in Australia and does not hold a substantive visa, so the Schedule 3 criteria apply to the application.
• The sponsor is barred or limited from sponsoring, or the sponsorship can be refused on character grounds.
• The couple are de facto partners and the relationship has existed for less than 12 months.
• The relationship has ended after the temporary visa was granted, and the family violence provisions are in issue.
• The Department has raised a bogus document, false or misleading information, or a concern about the applicant's identity.
• A request for more information under section 56, or a natural justice letter under section 57, has arrived.
• The application has been refused and a review deadline is running.

Some of these are visible from the outset. An applicant who has been unlawful for two years knows the problem exists, even if the extent of it is unclear. Others are invisible until the Department raises them, and by then the response window is short. A sponsor's earlier sponsorship of a former partner, a document supplied by an agent in an earlier application, or an inconsistency between two forms lodged years apart can all sit quietly on a departmental record until a delegate reaches them.

The sections below deal with each situation in turn: what the law requires, what the Department is directed to consider, and what the work on the file actually involves. The last section sets out what My Migration Lawyers does on matters of this kind.

Applying Onshore Without a Substantive Visa: Schedule 3

An applicant who is in Australia without a substantive visa must satisfy the Schedule 3 criteria, and those criteria are drafted so that most applicants cannot satisfy them. Criteria 3001 and 3002 impose a time limit measured from the day the applicant last held a substantive visa. Criteria 3003 and 3004 require, among other things, that the applicant became unlawful for reasons beyond their control, that there are compelling reasons for granting the visa, that the applicant substantially complied with the conditions of the last substantive visa held, and that the applicant would have been entitled to that visa in any event. An applicant who has simply overstayed will usually fail all of them.

The route through is the waiver. Subclause 820.211(2)(d)(ii) of Schedule 2 allows the delegate to be satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Departmental policy is explicit about what does not meet that standard. A genuine spouse or de facto relationship between the applicant and the sponsoring partner is not, as a general rule, a compelling reason, because a genuine relationship is the basis of every partner visa application. Nor is the hardship of separation if the applicant were required to leave Australia and apply offshore, because that hardship is common across the caseload. Policy also warns delegates against applying the waiver where a person has remained unlawful for years, made little effort to become lawful, and then relies on the length of the relationship.

What policy does accept is circumstances that were beyond the applicant's control, such as serious illness or incapacity that prevented the person from regularising their status by some other means. Where there is an Australian citizen child with a demonstrable link to the applicant, a delegate may waive the criteria in the best interests of the child. The matters a delegate is directed to weigh include any history of non-compliance with visa conditions, the length of time the applicant has been unlawful, the reasons the applicant became unlawful, the reasons the applicant did not seek to become lawful sooner, the current family composition including dependent children, and the steps the applicant has taken to become lawful other than lodging the partner visa application itself.

That is a legal argument, not a document checklist. It also has a timing dimension that is frequently misunderstood. In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the Full Court of the Federal Court held that the decision maker may consider circumstances that arose after the application was lodged when deciding whether there are compelling reasons not to apply Schedule 3. A submission that confines itself to the position as at the date of lodgement gives away material that the delegate is entitled to consider. A Schedule 3 waiver case is the clearest example of an application where legal representation changes what the delegate has in front of them.

When the Sponsor Is the Obstacle

A partner visa can fail because of the sponsor, before the relationship is assessed at all. Regulation 1.20J limits a person to two approved partner or prospective marriage sponsorships in a lifetime. It also requires that at least five years pass after the first visa application was made before another sponsorship can be approved, and it prevents a person who was themselves sponsored as a partner or fiance from sponsoring anyone for five years after their own visa application was made. The five years is measured from the date the earlier application was made, not from the date of grant, separation or divorce.

Regulation 1.20J(2) allows a sponsorship that would otherwise fail to be approved where there are compelling circumstances affecting the sponsor. As a matter of law, every case must be assessed against the waiver provision, whether or not the sponsor asks for it. Policy recognises, as examples, a dependent child of the applicant and the sponsor, the death of the previous partner, abandonment by the previous partner where children remain dependent on the sponsor, and a longstanding new relationship. Policy also directs decision makers to weigh the nature of the hardship the sponsor would suffer and the strength of the sponsor's ties to Australia. Those are matters for evidence and submission, and they concern the sponsor rather than the applicant, which is why sponsors are often the party who needs the advice.

Other bars sit alongside regulation 1.20J. Regulation 1.20KA prevents a person granted a permanent contributory parent category visa from sponsoring a partner or fiance for five years from the date of that grant, subject to a waiver for compelling circumstances that are not related to finances. Regulations 1.20KB, 1.20KC and 1.20KD deal with sponsors who have been charged with or convicted of relevant offences, including offences indicating a significant risk to a child in the sponsor's care, and with sponsors who have a significant criminal record. Subclause 820.211(2B) precludes sponsorship in defined circumstances where the sponsoring partner holds or held a Subclass 204 Woman at Risk visa, and clause 309.212 does the same offshore. The sponsorship must also be approved and remain in force at the time of decision.

Where a sponsor is caught, the choice is a legal one: argue the waiver, change the sponsor if the circumstances permit it, or restructure the timing of the application. Getting that choice wrong costs the application charge and, in an onshore case, can leave the applicant without status. The rules on partner visa sponsorship limitations should be checked before any application is lodged, not after a delegate raises them.

De Facto Couples and the 12-Month Requirement

For a de facto couple, regulation 2.03A requires the relationship to have existed for at least 12 months immediately before the date the application was made. The requirement is separate from the definition of a de facto relationship in section 5CB of the Migration Act. A couple can satisfy section 5CB and still fail regulation 2.03A, because the two provisions are assessed at different points and test different things. Regulation 2.03A also requires both the applicant and the partner to have been at least 18 years old when the application was made, and an applicant who turns 18 before the decision cannot cure a breach of that requirement.

There are prescribed ways out, and choosing between them is where advice is worth having. The first is registration. Where the de facto relationship is registered under a prescribed State or Territory relationship register, the 12-month minimum does not apply. Registration is effective even if it happens after the application is lodged, provided it happens before the decision, and a receipt showing that an application to register has been lodged is not sufficient. The second is compelling and compassionate circumstances. That is a high threshold, because the circumstances must be both compelling and compassionate. Policy gives as examples a dependent child of the relationship, and a country of residence in which de facto relationships are illegal. Policy is equally clear that pregnancy at the time of application does not, on its own, meet the threshold, and that the genuineness of the relationship cannot supply it either. A third path exists where the partner holds, held, or has applied for a permanent humanitarian visa. Marriage also removes the requirement, because a married applicant is assessed under section 5F of the Act instead.

The same regulations shape how a relationship is proved and how a refusal can be challenged. Regulation 1.09A(3) sets out four matters: the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the parties' commitment to each other. Where a partner visa is refused on the basis that there is no de facto relationship, the decision must address all four of those matters as a minimum. A refusal that fastens on one of them and passes over the others is a decision worth reading closely. The equivalent matters for a married couple appear in regulation 1.15A. Same-sex couples are assessed against exactly the same provisions, and an LGBTIQ partner visa application raises no additional legal test.

Section 56 Requests, Section 57 Letters and the Integrity Criterion

A request under section 56 of the Migration Act and a natural justice letter under section 57 are the last opportunity to put material before the delegate, and they are not the same thing. A section 56 request asks for further information. A section 57 letter puts relevant information to the applicant that would be the reason, or part of the reason, for refusing the visa, and invites comment. A section 57 letter therefore tells the applicant that the delegate has a reason to refuse, and what it is. The response is the last submission on the file.

Public interest criterion 4020 is the provision most often behind such a letter in a partner visa matter. PIC 4020(1) requires that there is no evidence that the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular, either in relation to the current application or in relation to a visa held in the 12 months before the application was made. Information is false or misleading in a material particular if it was false or misleading when it was given and relevant to a criterion the decision maker may consider, whether or not the decision actually turned on it. An earlier application prepared by someone else, a document supplied by a third party, or an answer given on a form years ago can all engage the criterion.

The consequences run beyond the current application. A refusal under PIC 4020(1) creates a three-year period during which PIC 4020(2) cannot be satisfied in a later application, and that period can also affect members of the applicant's family unit. A refusal for failing to satisfy the identity requirement in PIC 4020(2A) creates a ten-year period under PIC 4020(2B), and there is no waiver for it. The waiver in PIC 4020(4) applies only to PIC 4020(1) and (2), and only where there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. In a combined application, one applicant's failure can defeat the others. A section 57 response in a PIC 4020 case is the point at which the case is either saved or lost, and it should be prepared as a legal submission with evidence attached. Where a letter of this kind has arrived, it is worth requesting a consultation before the response is sent rather than after.

If the Relationship Ends Before the Permanent Visa

A relationship that ends after the temporary partner visa is granted does not automatically end the application for the permanent visa. Division 1.5 of the Migration Regulations allows the permanent stage to proceed where the applicant, or another person named in the criterion, has experienced family violence committed by the sponsoring partner. Regulation 1.21 defines relevant family violence, and that definition, rather than any general understanding of the term, is what the claim must meet.

The evidence rules are technical and they are where these claims are most often lost. Regulation 1.23 distinguishes judicially determined claims, which rest on a court order or an injunction, from non-judicially determined claims. For a non-judicially determined claim under regulation 1.23(9), regulation 1.24 requires a statutory declaration by the alleged victim that complies with regulation 1.25, together with at least two prescribed documents of different types from the categories set out in the relevant legislative instrument. The statutory declaration must name the person alleged to have committed the violence, set out the allegation, and, where the conduct was directed at someone else, identify that person and the relationship between them. It must be in English, properly witnessed, and any attachments must be referred to accurately and witnessed on each page. At least part of the violence must have occurred while the relationship existed.

Providing evidence that complies with regulation 1.24 does not establish the claim. It means that an acceptable claim has been made, which the Department must then consider, and which may be referred for assessment. These are the cases where the drafting of the declaration and the selection of the supporting documents decide the outcome, and where a person is usually being asked to set out the worst period of their life in a form that satisfies a regulation. My Migration Lawyers acts in family violence partner visa matters at both the temporary and the permanent stage.

If the Partner Visa Is Refused

A partner visa refusal carries a review right in most cases, but who holds that right, and where they must be standing when they exercise it, depends on the subclass and on where the applicant was when the decision was made. This is the point at which the most damaging mistakes are made, because the review period is short and the Tribunal has no power to extend it.

For an onshore refusal reviewable under section 338(2) of the Migration Act, the application for review must be made by the applicant, and it can only be made while the applicant is physically present in the migration zone. Leaving Australia, even briefly, can remove the ability to lodge. For a refusal of a Subclass 300 prospective marriage visa, the regulations prescribe the sponsor as the person who may apply for review, not the visa applicant, and no location requirement applies to the sponsor. Where a permanent Subclass 100 visa is refused while the applicant is outside Australia, there is no merits review of that decision at all. Where the same visa is refused while the applicant is in Australia, review is available under section 338(7A), but only if the applicant was in the migration zone when the decision was made and is in the migration zone when the review application is lodged.

Those rules are not intuitive, and a notification letter is not always read closely by the person who receives it. The first step in any partner visa refusal matter is to establish the date the applicant is taken to have received the decision, identify who holds the review right, and lodge within the period. The second step is to read the decision record against the criteria and work out what the Tribunal will need to decide differently. A review is not a second chance to lodge the same material. It is a fresh decision on the merits, and it is won by identifying the finding that was wrong and putting the evidence that meets it.

How My Migration Lawyers Acts on Partner Visa Matters

My Migration Lawyers is a specialist migration law firm and partner visas are one of its two core practice areas. Weiwei Zhang, the firm's Principal Lawyer, acts in partner visa matters of exactly the kind described above: Schedule 3 cases, sponsorship bars and waivers, de facto relationships that fall short of 12 months, family violence claims at the permanent stage, integrity and identity issues under public interest criterion 4020, and refusals before the Administrative Review Tribunal. These are the complex end of the partner visa caseload, and the firm acts in a steady volume of them.

The work on a matter of this kind follows the same pattern. The firm reads the whole file first, including the applicant's immigration history, which it obtains itself rather than asking the client to reconstruct it. It identifies which criterion is actually at risk, because that is what the application will be decided on. It then prepares the submission and the evidence that address that criterion, applying the statutory test and the Department's own policy to the client's circumstances. The client's account of the relationship is the client's own evidence. The firm puts it in the form the law requires, the client reviews and corrects it, and the client decides which claims are advanced.

The firm also handles the correspondence that decides these matters. That includes responses to section 56 requests and section 57 natural justice letters, submissions on Schedule 3 and sponsorship waivers, and applications to the Administrative Review Tribunal within the review period. Fees are fixed per matter and agreed in writing before any work begins, so the cost of the stage is known at the outset. Consultations are conducted by video and the firm acts for clients across Australia, including as immigration lawyers in Sydney.

Legal advice is worth obtaining before an application is lodged, because most of the problems described above are cheaper to solve at that point than after a refusal. Where an application has already been lodged, or a letter has already arrived from the Department, the position can still be assessed and the response prepared properly. A consultation can be requested online, and the firm's approach to this work is set out further on the profile of Weiwei Zhang.