Partner Visa After a Visa Refusal: Can You Apply in Australia?

Can you apply for a partner visa in Australia after a visa refusal?

Yes. A visa refusal in Australia does not prevent an onshore partner visa application, because the partner visa classes are prescribed classes under regulation 2.12 of the Migration Regulations 1994 and are therefore outside the section 48 bar.

This is the point most often misunderstood after a refusal. A person whose student visa, visitor visa or skilled visa has been refused is frequently told, by friends, by online forums and sometimes by the person who lodged the failed application, that Australia is now closed to them and that they must leave. That advice is wrong as a statement of law. Section 48 of the Migration Act 1958 restricts the classes of visa that may be applied for in Australia after a refusal. It does not close the list. Partner visas are on the list that remains open.

The onshore partner visa is lodged as a combined application. The applicant applies at the same time for a Subclass 820 partner visa, which is the temporary stage, and a Subclass 801 partner visa, which is the permanent stage. In the language of the Regulations, those are the Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa classes. Both classes are prescribed for the purposes of section 48. A person affected by the section 48 bar may make a valid application for them while remaining in Australia.

There is a distinction here that has to be held firmly in mind, because almost every error made after a refusal comes from collapsing it. Being permitted to apply is not the same as being able to be granted. Section 48 governs whether the application can validly be made. Schedule 2 and Schedule 3 of the Migration Regulations 1994 govern whether the visa can be granted. A person can lodge a perfectly valid partner visa application, obtain a bridging visa, remain lawfully in Australia for years, and still be refused at the end of it because a criterion for grant was never going to be satisfied. The work after a refusal is not simply getting an application in. It is identifying, before lodgement, which criterion the case will turn on.

What section 48 of the Migration Act 1958 actually says

Section 48 applies to a non-citizen who is in the migration zone, who does not hold a substantive visa, and who since last entering Australia has either had a visa application refused or had a visa cancelled under one of the cancellation provisions the section lists. A person in that position may apply only for a visa of a class prescribed in regulation 2.12.

Each element of that test matters, and each element is a place where the bar can be found not to apply at all.

The person must be in the migration zone. Section 48 is a restriction on applications made in Australia. It says nothing about applications made from outside Australia.

The person must not hold a substantive visa. A substantive visa is defined in subsection 5(1) of the Act as a visa other than a bridging visa, a criminal justice visa or an enforcement visa. This is the element most often misread in both directions, and it is dealt with separately below.

The refusal or cancellation must have occurred since the person last entered Australia. A refusal that happened before the applicant's most recent entry does not engage the section. Subsection 48(3) closes an obvious gap here. A person who leaves and re-enters Australia while holding a bridging visa is taken to have been continuously in the migration zone despite that travel, so a trip overseas on a Bridging B visa does not reset the position.

Two categories of refusal are carved out of the section by its own words. A refusal of a bridging visa does not engage section 48, and neither does a refusal under section 501, 501A or 501B of the Act. A character refusal carries its own, far more serious consequences, but it does not trigger this particular bar. Subsection 48(1A) extends the section to a person whose visa application was made on their behalf and refused, including where the person did not know about or understand the nature of the application.

Who is not caught by the section 48 bar

A person who still holds a substantive visa is not caught by section 48 at all, however many refusals sit behind them. If a student visa holder applies for a skilled visa and it is refused while the student visa remains in effect, that person is not a section 48 affected applicant. They may apply for whatever they are otherwise eligible for, including a partner visa, and the additional requirements described later in this article do not apply to them. The practical consequence is that timing is everything. The same facts produce two entirely different legal positions depending on whether the substantive visa is still in effect on the day the partner visa application is lodged.

A bridging visa does not help. A bridging visa is expressly excluded from the definition of a substantive visa in subsection 5(1), so a person holding a Bridging A visa while a refusal is under review at the Administrative Review Tribunal is a person who does not hold a substantive visa. Section 48 applies to them for as long as that remains the position. Many applicants assume that having a bridging visa means they are in the clear. They are not.

A person outside Australia is not caught. Section 48 operates on applications made in the migration zone. An application for an offshore partner visa made while the applicant is overseas is unaffected by the bar, even where the applicant left Australia on a bridging visa and intends to return on it. That route is not free of difficulty, and the difficulties are set out in the final part of this article, but section 48 is not one of them.

Anyone who is unsure which of these categories they fall into should establish it before lodging anything. The question is answered by the movement records and the visa history, not by recollection. My Migration Lawyers checks a client's visa status and entry history directly rather than relying on what the client has been told, because the answer determines both whether the application is valid and which criteria it will be assessed against. General guidance on refusals across visa types is set out on the visa refusals page.

Schedule 3 is the real obstacle, not section 48

Schedule 3, not section 48, is what actually defeats most onshore partner visa applications made after a refusal. Subparagraph 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 provides that an applicant who is not the holder of a substantive visa must satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

Criterion 3001 imposes a time limit. The application must be made within a short, fixed period running from the relevant day, which is generally the day the applicant's last substantive visa ceased to be in effect. The period is measured in days, not months. By the time most people have absorbed a refusal, taken advice and decided to apply for a partner visa, that period has already passed. Departmental policy on Schedule 3 is explicit that failing criterion 3001 does not make the application invalid. The application can still be made. What it means is that the Schedule 2 criteria cannot be satisfied and the visa cannot be granted unless the waiver is exercised.

Criteria 3003 and 3004 apply to applicants who became unlawful in defined circumstances and require, among other things, that the circumstances that led to the applicant becoming unlawful were beyond their control, that there are compelling reasons for granting the visa, and that the applicant has substantially complied with the conditions of their last substantive visa.

In practice, for almost every person applying for a partner visa after a refusal has left them without a substantive visa, the case is won or lost on the waiver in subparagraph 820.211(2)(d)(ii). Everything else in the application, the relationship evidence, the Form 888 statements, the sponsorship, matters only if the waiver is exercised. An application that treats the waiver as an afterthought, or that assumes the strength of the relationship will carry it, is an application built the wrong way round. The dedicated Schedule 3 waiver page sets out how the criteria interact with the rest of the partner visa requirements.

What counts as compelling reasons to waive Schedule 3

The Regulations do not define compelling reasons, and they do not list the circumstances a decision maker must consider. The waiver is assessed case by case.

The leading authority is Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32. The Full Court of the Federal Court held that in considering subparagraph 820.211(2)(d)(ii), a decision maker must consider all of the applicant's circumstances to the extent they are known up to the time of decision, and form a view as to whether any one or more of them provide compelling reasons not to apply the Schedule 3 criteria. Before Waensila, the Department's position was that only circumstances existing at the time of application could be taken into account. That is no longer the law. Circumstances that arise after lodgement, including the birth of a child or a serious deterioration in a sponsor's health, must be considered.

Departmental policy is equally clear about what will not ordinarily be enough. As a general rule, the existence of a genuine married or de facto relationship is not itself a compelling reason, because a genuine relationship is the basis of every partner visa application. Nor, as a general rule, is the hardship caused by separation if the applicant were required to leave Australia and apply from overseas, because that hardship is common across the partner visa caseload. Policy also directs that the waiver should not be applied where it is reasonable to expect the applicant to leave Australia and apply for a partner visa outside Australia.

The matters policy directs decision makers to weigh include any history of non-compliance with visa conditions, the length of time the applicant has been an unlawful non-citizen, the reasons the applicant became unlawful, the reasons the applicant did not seek to become lawful sooner, the current family composition including any dependent children, and what steps the applicant has taken to become lawful other than lodging the partner visa application itself. Policy treats circumstances that arose beyond the applicant's control as the clearest category of compelling reasons. It also states that where there is an Australian citizen child with a demonstrable link to the applicant, a decision may be made to waive the Schedule 3 criteria in the best interests of the child.

The consequence for how a case is presented is direct. A waiver submission that recites the relationship and asks for sympathy is answering a question the decision maker is not asking. A submission that identifies what happened, why it was beyond the applicant's control, what the applicant did about it, and what turns on the outcome for an Australian citizen or permanent resident, is answering the question the policy sets. The evidence for each of those propositions is the client's own material, gathered and put in the form the criterion requires.

The extra requirements that make a section 48 partner application valid

A section 48 affected applicant must satisfy validity requirements that do not apply to anyone else, and an application that misses them is not merely weak. It is invalid.

Schedule 1 item 1124B(3)(e) provides that a person to whom section 48 applies must provide, at the same time and place as making the application, the approved sponsorship form completed and signed by the Australian citizen, Australian permanent resident or eligible New Zealand citizen who claims to be the applicant's spouse or de facto partner. That form is Form 40SP. It must be lodged with the application, not afterwards.

The same item requires two statutory declarations. Each must be made by an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is not the sponsoring partner. Each must declare that the applicant and the partner are in a married relationship or a de facto relationship. Each must have been declared shortly before the application is made, within the period the item specifies, which means declarations prepared months in advance will not satisfy the requirement. These declarations are separate from, and additional to, the Form 888 statements that support the relationship on the merits. Departmental policy explains the reason for the higher threshold plainly: applicants subject to a section 48 bar are required to meet a higher standard than other applicants in order to maintain the integrity of the partner visa programme.

Paragraph 1124B(3A)(a) extends the position to dependent children. Where a section 48 affected applicant has met the requirements of paragraph 1124B(3)(e), an application by a person claiming to be a dependent child of that applicant is also valid.

There is a further trap for a person whose permanent partner visa has just been refused. A person refused a Subclass 801 or Subclass 100 visa continues to hold the associated temporary partner visa until they are notified of the refusal, which creates a short window in which a further partner visa application might be lodged. Paragraph 1124B(3)(d) closes that window by providing that an applicant who holds a Subclass 820 or Subclass 309 visa at the time of application must not have had any of the listed partner visas refused in the period immediately before the application is made. The effect is to preclude serial partner visa applications unless the applicant first obtains a different substantive visa or meets the section 48 requirements in paragraph 1124B(3)(e).

When a visa condition or an integrity refusal blocks the application instead

Two other provisions stop partner visa applications after a refusal, and neither has anything to do with section 48.

Condition 8503, the no further stay condition, provides that the holder will not, after entering Australia, be entitled to be granted a substantive visa other than a protection visa while the holder remains in Australia. It appears on many Subclass 600 visitor visas, on a mandatory basis in several streams. Conditions 8534 and 8535 operate the same way on other visas. Where 8503 applies, a partner visa cannot be granted in Australia unless the condition is waived. Subsection 41(2A) of the Act permits a waiver in the circumstances prescribed in regulation 2.05. The ordinary waiver in subregulation 2.05(4) requires compelling and compassionate circumstances that developed since the visa was granted, that were beyond the holder's control, and that resulted in a major change in the holder's circumstances, and the request must be made in writing. Circumstances that existed before the visa was granted cannot satisfy the change requirement, although policy accepts that existing circumstances may have deteriorated to the point that they can be said to have developed since grant.

Public interest criterion 4020 is the other. If the earlier refusal was based on a bogus document or information that was false or misleading in a material particular, PIC 4020(2) imposes a non-grant period during which a further visa cannot be granted, and a refusal based on a failure to satisfy the decision maker as to identity under PIC 4020(2B) imposes a longer one. PIC 4020(4) allows the requirements in PIC 4020(1) and (2) to be waived 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. There is no waiver at all for the identity requirements in PIC 4020(2A) and (2B). Where a previous application failed on PIC 4020 grounds, that finding, and not the relationship, is the first thing a new partner visa application has to deal with.

Applying for a Subclass 309 partner visa from outside Australia

Leaving Australia and lodging offshore removes the section 48 problem and the Schedule 3 problem at once, because neither provision applies to an application made outside the migration zone. The Subclass 309 offshore partner visa is the temporary stage, and the Subclass 100 visa is the permanent stage. For some people this is the shorter and more certain route, and departmental policy on the Schedule 3 waiver expressly contemplates that a person who can leave Australia and apply from overseas will often be expected to do so.

It is not a costless option, and the risk sits in the departure itself rather than in the application.

Public interest criterion 4014 is the provision to check first. A person who leaves Australia as an unlawful non-citizen, or as the holder of a Bridging C, Bridging D or Bridging E visa, is generally affected by a risk factor under PIC 4014(4) and cannot be granted a visa until an exclusion period measured in years has passed since departure. PIC 4014(5) contains exceptions, principally where the person left Australia shortly after their last substantive visa ceased, or where the bridging visa held on departure was granted within that same short period of the substantive visa ceasing, or was granted while the person held another bridging visa that was itself granted in time. The exceptions turn on the exact sequence and dates of the bridging visas held, which is why the movement and visa records have to be read before anyone books a flight. PIC 4014(1) allows the exclusion to be set aside where the decision maker is satisfied 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.

Public interest criterion 4013 runs in parallel where the earlier decision was a cancellation rather than a refusal. A person whose visa was cancelled on one of the grounds listed in PIC 4013 cannot be granted a visa until an exclusion period has passed from the date of cancellation, subject to the same compelling and compassionate exception. Where a cancellation sits in the history, the position is set out further on the visa cancellations page.

The choice between the onshore and offshore routes is therefore not a matter of preference. It is a comparison between the strength of a Schedule 3 waiver argument on the one hand, and the exclusion period risk plus the period of separation on the other. That comparison can only be made once the visa history is known.

How My Migration Lawyers approaches a partner visa after a refusal

My Migration Lawyers acts for couples where one partner has already had a visa refused, and the work begins before any application is drafted.

The first step is establishing the client's exact status as a matter of law rather than recollection. That means confirming the date of the refusal or cancellation, the provision it was made under, the date the last substantive visa ceased, every bridging visa held since, and every departure from and entry into Australia. Those facts decide whether section 48 applies, whether Schedule 3 applies, whether condition 8503 sits on the current visa, and whether an exclusion period under PIC 4013 or PIC 4014 would be triggered by leaving. The firm obtains that history itself from the client's records and departmental sources rather than asking the client to reconstruct it.

The second step is deciding which route the case should take. An onshore Subclass 820 partner visa with a Schedule 3 waiver argument, an offshore Subclass 309 application, or review of the original refusal are genuinely different strategies with different risks, and the right one depends on the history rather than on what the client would prefer. Where the earlier refusal turned on PIC 4020 or on a finding about the relationship itself, that finding has to be addressed directly, because it will follow the client into the next application.

The third step is preparing the application so that the provision the case turns on is answered squarely. Where the waiver in subparagraph 820.211(2)(d)(ii) is in issue, that means a written submission that sets out the client's own account of what happened and why, supported by the client's own documents, addressed to the matters the Regulations and departmental policy make relevant. The client reads and corrects the statement before it is filed, and the client decides which matters are advanced. Where the application is section 48 affected, it means the Form 40SP sponsorship and the declarations required by Schedule 1 item 1124B(3)(e) are prepared and lodged with the application itself, so that validity is never in question.

Partner visa matters at the firm are handled by Weiwei Zhang, Principal Lawyer at My Migration Lawyers. Consultations are held by video anywhere in Australia, and fees for partner visa work are fixed and agreed in writing before the matter starts. A person who has had a visa refused and is considering a partner visa can request a consultation and have their visa history assessed before any application is lodged.