Partner Visa Appeal vs Reapplication: Which Option Fits?

The partner visa appeal or reapply question arises the moment a refusal letter arrives. Should the couple ask the Administrative Review Tribunal to review the refusal, or should they lodge a fresh partner visa application? The partner visa appeal or reapply decision is not a matter of preference. It depends on why the visa was refused, where the applicant is, what visa the applicant holds now, and which criteria are tested at the time of application.

This guide is for couples who are still within the period allowed to apply for review. It compares the two paths side by side: what each one keeps, what each one risks, and which refusal reasons usually point one way or the other. It does not cover the Tribunal fee, which is explained separately, and it does not cover how to prepare evidence for the hearing. For the wider picture of what can happen after a refusal, read our guide to partner visa refusal appeal options and our partner visa refusals service page.

What does partner visa appeal or reapply mean?

Partner visa appeal or reapply describes the choice between two legal paths after the Department of Home Affairs refuses a partner visa. The first path is merits review in the Administrative Review Tribunal, often called an appeal. The second path is a new partner visa application, made to the Department as if for the first time.

The two paths are not the same thing with different names. A review is a continuation of the original application. The Tribunal looks at the same application, lodged on the same date, and decides whether the visa should be granted. A new application is a different application, lodged on a later date, and every criterion is tested again from that new starting point.

That difference is the reason the partner visa appeal or reapply decision matters so much. Some criteria are tested at the time the application is made. If those criteria were met when the original application was lodged, review keeps that advantage. If the couple reapply, the criteria are tested again, and the applicant's circumstances may now be worse. Other criteria are tested at the time of the decision. For those, both paths look at the present situation.

Strictly speaking, the Tribunal does not hear an appeal in the way a court hears an appeal. It conducts merits review: it stands in the place of the original decision maker and makes the decision again on the material before it. People still search for "appeal", and this article uses the word in that sense. Our guide to what to expect at an ART review after a visa refusal explains the process in more detail.

The short answer: when review usually fits and when reapplying may fit

In most onshore cases, review is the safer starting point, because it preserves the original application and the visa status the applicant had when it was lodged. Reapplying is usually the better choice only where the defect cannot be fixed on review, or where the couple are offshore and a fresh Subclass 309 application avoids the delay of a hearing without any legal disadvantage.

As a working guide, the partner visa appeal or reapply question tends to fall this way:

• Review often fits where the refusal was about whether the relationship is genuine and continuing, where the decision maker misunderstood or overlooked evidence, where the applicant held a substantive visa when the original onshore application was made but holds only a bridging visa now, or where a new onshore application would face Schedule 3 or condition 8503.
• Reapplying may fit where a criterion that must be met at the time of application was not met on the original lodgement date, but is met now. A common example is a de facto couple who applied before the relationship had lasted long enough and who cannot rely on an exception.
• Reapplying may also fit in an offshore Subclass 309 case where the refusal turned on a simple gap that a new, complete application would cure, and where the sponsor and applicant accept the cost of a new application.
• Neither path is simple where the refusal involves character, the integrity criterion in PIC 4020, or the sponsorship limitations. In those cases the partner visa appeal or reapply decision needs advice on the specific criterion, because a new application does not escape the same test.

The rest of this guide explains why each of these points is true, with the statutory basis for each one.

Why the partner visa appeal or reapply decision cannot wait

The partner visa appeal or reapply decision must be made before the review period in the refusal letter ends, because a late review application cannot be accepted. The period for applying to the Tribunal is short and strictly applied. It runs from the date the applicant is taken to have been notified of the decision, which is not always the date the letter was opened.

Once the review period has passed, one of the two options is gone. A couple who meant to "think about it" can find that the partner visa appeal or reapply question has been answered for them, and that only a new application remains. For an onshore applicant on a bridging visa, that can mean facing Schedule 3 for the first time.

The deadline also affects lawful status. A bridging visa granted with the original onshore application generally continues only if review is sought within the time allowed. If no review is sought, the bridging visa generally ends after the refusal, and the applicant must act quickly to avoid becoming unlawful.

For these reasons, the first step after a refusal is to find the date of notification, read the review rights section of the letter, and get advice on the partner visa appeal or reapply decision without delay. A review application can be lodged within time and the strategy refined afterwards. A missed deadline cannot be repaired. Our guide to booking an immigration lawyer consultation explains what to bring to a first meeting, and our article on when you need an immigration lawyer for a partner visa explains the work involved.

How ART review works for a refused partner visa

The Administrative Review Tribunal reviews a refused partner visa on its merits and makes a fresh decision on the evidence before it at the time of its decision. The Tribunal is not limited to the material the Department had. It can consider new evidence and updated circumstances, and it can hold a hearing where the applicant and the sponsor give evidence.

At the end of the review, the Tribunal generally does one of three things. It can affirm the refusal, which leaves the refusal in place. It can set the decision aside and substitute a new decision. Or it can set the decision aside and remit the matter to the Department with a direction, for example a direction that the applicant meets a particular criterion. Remittal is the usual outcome in partner visa matters where the Tribunal finds in the applicant's favour on the contested criterion, because the Department then completes the remaining checks, such as health and character.

This is why review is so often the answer to the partner visa appeal or reapply question in a genuineness case. The Tribunal decides afresh. It is not asking whether the Department's officer was reasonable. It is asking whether, on everything now before it, the relationship meets the legal test. A couple who were refused because their evidence was thin, or because the officer drew conclusions the couple dispute, can put their full case before an independent decision maker.

Review also keeps the original application in existence. While the review is pending, the original application has not been finally determined. That matters for the bridging visa, for Schedule 3, and for every criterion that is tested at the time of application. Our visa refusals page and our guide to the visa appeal lawyer's role explain how review works across visa types.

Time-of-application and time-of-decision criteria

The Migration Regulations 1994 divide criteria into those that must be met at the time of application and those that must be met at the time of decision. This distinction is at the heart of every partner visa appeal or reapply decision.

On review, the Tribunal stands in the shoes of the original decision maker. For a time-of-application criterion, the Tribunal asks whether it was met on the day the original application was lodged. New evidence can prove what the position actually was on that day, but it cannot change what the position was. For a time-of-decision criterion, the Tribunal looks at the position when it makes its own decision, which may be many months after the refusal.

So review can rescue a case where a time-of-application criterion was in fact met but not proven, and it can rescue a case where a time-of-decision criterion is met now even if it was not met before. Review cannot rescue a case where a time-of-application criterion was genuinely not met on the lodgement date. That is the main situation in which reapplying is the only real option.

Who can apply for review: onshore applicant or offshore sponsor

For an onshore partner visa, the person who applies to the Tribunal is the visa applicant. For an offshore Subclass 309 and Subclass 100 refusal, the review is applied for by the Australian sponsor, not by the applicant overseas.

The onshore position follows from section 338 of the Migration Act 1958. A decision to refuse a visa to a non-citizen who was in the migration zone when the application was made is generally a reviewable decision, and the applicant is the person who seeks review. This covers the combined Subclass 820 partner visa and Subclass 801 application. Our guides to the Subclass 820 onshore partner visa and to Subclass 820 vs Subclass 801 explain how the two stages fit together, and why a refusal at either stage raises the same partner visa appeal or reapply question.

The offshore position is different. Section 338 also makes reviewable a refusal of a visa to an applicant outside Australia where the visa requires the applicant to be sponsored by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The Subclass 309 partner visa is such a visa. In that case the sponsor is the review applicant. If the sponsor does not apply in time, review is lost even if the applicant wanted it.

This affects the partner visa appeal or reapply decision in a practical way. In an offshore matter, it is the sponsor in Australia who must act, sign the review application and usually attend the hearing. Where the sponsor is unwilling or unable to do that, a new offshore application may be the only workable path. The refusal letter states who has review rights and the period allowed, and it should be read the day it arrives. The Subclass 300 Prospective Marriage visa follows the same offshore sponsor-review structure.

What reapplying actually involves

Reapplying means making a completely new partner visa application, with a new visa application charge, a new sponsorship, new evidence and a new lodgement date. The earlier refusal does not disappear. It stays on the Department's records, and the new decision maker will usually read it.

A new application is not a request for the Department to reconsider. The Department will assess the new application from the beginning. Every criterion is tested again: the relationship, the sponsor, the location rules, Schedule 3 where it applies, health, character and the public interest criteria. Our complete guide to partner visas in Australia sets out the full set of criteria, and our partner visa document checklist lists the documents that support them.

Reapplying also means that the reasons for the earlier refusal become the first thing the new decision maker looks at. If the couple do not deal with those reasons directly, the second application is likely to fail for the same reasons. A partner visa appeal or reapply decision that chooses reapplication must therefore answer two questions: is the defect now cured, and will the new application show clearly that it is cured?

The new application also starts the processing period again. The couple go back to the start of the queue, and the wait for a decision begins again from the new lodgement date. Our article on how long a Subclass 820 partner visa takes explains how processing works. Review also takes time, so time alone rarely decides the partner visa appeal or reapply question. The legal consequences of each path almost always matter more.

Cost in general terms

Both paths cost money, and the costs are of different kinds. Review requires the Tribunal application fee. Reapplying requires a full new visa application charge, which for a partner visa is substantial, together with new health examinations and police certificates where they have expired. The Department's visa pricing and the Tribunal's fee are published by those bodies and change from time to time. Our article on what a Subclass 820 visa costs explains the Department's charges.

In most cases the partner visa appeal or reapply question should not be decided on cost alone. The cheaper path on paper can be far more expensive if it exposes the applicant to Schedule 3, to a bar on applying in Australia, or to a second refusal.

Section 48 and the partner visa appeal or reapply decision

Section 48 of the Migration Act 1958 does not stop an onshore applicant from reapplying for a partner visa in Australia after a refusal, because the partner visa classes are prescribed for that purpose. But section 48 is the first thing to check in any onshore partner visa appeal or reapply decision, because it controls what else the applicant can apply for.

Section 48 applies to a non-citizen in the migration zone who does not hold a substantive visa and who, since last entering Australia, has had a visa application refused or a visa cancelled. Such a person may apply only for a visa of a class prescribed by the Regulations. Regulation 2.12 of the Migration Regulations 1994 lists the prescribed classes. They include Partner (Temporary) (Class UK), which contains the Subclass 820, and Partner (Residence) (Class BS), which contains the Subclass 801.

In plain terms, a person whose onshore partner visa has been refused, and who now holds only a bridging visa, can still lodge a new onshore partner visa application. They cannot, however, apply for most other visas while they remain in Australia. A student visa, a skilled visa or a visitor visa is generally not available to them onshore. That narrows the options and is one reason the partner visa appeal or reapply decision carries so much weight.

Section 48 also matters for people who were refused a different visa before applying for a partner visa. Our article on applying for a partner visa after a visa refusal explains how section 48 operates where the earlier refusal was, for example, a student or skilled visa.

Section 48 does not answer the Schedule 3 question

It is a common mistake to think that because section 48 allows a new partner visa application, a new application is therefore straightforward. Section 48 only answers whether a valid application can be made. It says nothing about whether the application can succeed. For a person who no longer holds a substantive visa, the answer to that second question usually depends on Schedule 3.

Schedule 3: the hidden cost of reapplying onshore

Schedule 3 is the main reason review is usually preferred over reapplying in an onshore partner visa case. An onshore applicant who does not hold a substantive visa when the new partner visa application is made must generally meet the Schedule 3 criteria, numbered 3001, 3003 and 3004, unless the decision maker is satisfied that there are compelling reasons for not applying them.

The Schedule 3 criteria are time-of-application criteria. They are tested on the day the application is lodged. A person whose original Subclass 820 application was lodged while they held a student visa, a work visa or another substantive visa did not have to deal with Schedule 3 at all. That position is fixed for the original application.

After the refusal, the same person usually holds only a bridging visa. A bridging visa is not a substantive visa. If they reapply, the new application is made by a person who does not hold a substantive visa, and Schedule 3 now applies. A couple who never had to argue Schedule 3 the first time may have to argue it the second time, purely because they chose to reapply instead of seeking review.

That is why, for this group of applicants, the partner visa appeal or reapply decision usually favours review. Review keeps the original lodgement date and the original visa status. The Tribunal applies the criteria that applied to the original application. Schedule 3 does not suddenly arise because the Department refused the visa.

When Schedule 3 already applied to the original application

Where the original application was itself lodged by a person without a substantive visa, Schedule 3 applied from the beginning. In that case the partner visa appeal or reapply decision turns on a different question: are the compelling reasons stronger now than they were on the original lodgement date?

Compelling reasons for not applying Schedule 3 are assessed at the time of application. On review, the Tribunal looks at whether compelling reasons existed when the original application was made. A new application would be assessed on the circumstances at the new lodgement date. Where circumstances have changed significantly since the first lodgement, for example where the couple now have an Australian citizen child, a new application might present a stronger compelling reasons case. Where nothing has changed, reapplying simply repeats the same argument with a later date.

The Tribunal has considered compelling reasons in many partner visa matters. In Hassan (Migration) [2021] AATA 2159, a court remittal involving a Subclass 820 applicant who was not the holder of a substantive visa at the time of application, the reported issues included the sponsor's significant illnesses and whether compelling reasons existed. Our Schedule 3 waiver page, our article on Schedule 3 criteria when you are unlawful and our guide to the Schedule 3 partner visa waiver explain the criteria and the waiver in detail.

Condition 8503 and other bars on applying again in Australia

Some people cannot make a new onshore application at all, which removes reapplying from the partner visa appeal or reapply decision unless they leave Australia. The most common reason is condition 8503, the No Further Stay condition.

Condition 8503 is attached to a substantive visa, often a visitor visa. While a person holds a visa subject to condition 8503, they generally cannot make a valid application for most substantive visas in Australia unless the condition has first been waived. If the original partner visa application was made after a waiver, or was made while the person held a different visa without the condition, the position on a new application must be checked again from the start.

Where a person still holds a substantive visa with condition 8503 when the partner visa is refused, a new onshore application is generally not available without a further waiver. Review, by contrast, does not involve making a new visa application, so the condition does not prevent the review. Our article on whether you can apply for a Subclass 820 visa with a No Further Stay condition (8503) explains how waivers work, and our guide on moving from a tourist visa to a partner visa in Australia covers visitors who meet their partner in Australia.

Other bars can also apply. A person whose visa has been cancelled may face additional restrictions, depending on the ground of cancellation. Our visa cancellations page explains those rules. Every partner visa appeal or reapply decision for an applicant in Australia should start with a check of the applicant's full visa history, not just the most recent refusal.

Bridging visas: review compared with a new application

Review usually keeps the bridging visa that was granted with the original application in effect while the Tribunal decides the case. A new application may lead to a different bridging visa, with different conditions, or in some cases to no bridging visa at all.

When an onshore Subclass 820 application is lodged by a person holding a substantive visa, a Bridging Visa A is generally granted. That Bridging Visa A generally continues while the application is being decided, including during a review of a refusal made within the time allowed, and ends a set period after the review is finally determined. The applicant's lawful status during review therefore usually rests on the bridging visa from the original application. Our articles on the Bridging Visa A and on bridging visas in Australia explain these rules.

If the review period passes without a review application, that bridging visa will generally come to an end after the refusal. The applicant must then either leave Australia, make a new application that carries a new bridging visa, or risk becoming unlawful. A new application lodged by a person who holds only a bridging visa may result in a different class of bridging visa, often with different work and travel conditions. Travel outside Australia is a particular concern: a person on some bridging visas cannot return once they leave unless they hold a Bridging Visa B or another visa allowing re-entry.

For couples whose daily life depends on the right to work, the partner visa appeal or reapply decision should include a clear check of work rights on each path. Our article on working while waiting for a Subclass 820 visa explains the work conditions attached to bridging visas.

Offshore Subclass 309: the partner visa appeal or reapply decision outside Australia

For an offshore applicant, the partner visa appeal or reapply decision is usually more open, because section 48 and Schedule 3 do not apply to an application made outside Australia. A refused Subclass 309 applicant can generally lodge a new offshore application without the restrictions that affect onshore applicants.

That does not mean reapplying is always better offshore. A new Subclass 309 application starts processing again from the beginning, requires a new charge and a new sponsorship, and will be assessed by an officer who can see the earlier refusal. If the refusal was about the genuineness of the relationship, the new application faces the same scepticism unless it answers the earlier findings directly. Review by the Tribunal, applied for by the sponsor, puts the evidence before an independent decision maker who must decide afresh.

The Tribunal regularly remits offshore partner matters where the relationship was found to be genuine on review. In PHAM (Migration) [2019] AATA 3680, a Subclass 309 matter, the reported issues were a genuine de facto relationship, the parties living in separate countries, having previously lived together, and the relationship history. In Koroma (Migration) [2026] ARTA 200, a Subclass 309 matter, the reported issues included a genuine and continuing relationship, a valid marriage in the home country and limited financial, household and social aspects while the parties lived in different countries. Cases like these show that living apart, on its own, is not the end of an offshore case on review.

Location still matters on review. The Subclass 309 can only be granted while the applicant is outside Australia. If the applicant comes to Australia during the review, they must generally be outside Australia when the visa is finally granted. Our Subclass 309 offshore partner visa page explains these location rules.

The sponsor's position offshore

In an offshore case the sponsor carries the review. That means the sponsor's own circumstances, including any sponsorship limitation or criminal history, may become the focus. Our partner visa sponsorship limitations page and our article on when a sponsor cannot sponsor a partner visa explain the rules that apply to sponsors.

Relationship breakdown, family violence and the partner visa appeal or reapply choice

Where the relationship has ended since the refusal, reapplying with the same sponsor is not available, and the partner visa appeal or reapply question changes shape. The issue becomes whether the original application can still succeed on another basis, and review is usually the only path that can test that.

The Migration Regulations 1994 allow a partner visa to be granted in some cases even though the relationship has ended. The best known are where the sponsor has died, and where the relationship has ended and the applicant or a family member has suffered family violence committed by the sponsor. These provisions operate within the original application. They do not support a fresh partner visa application, because a new application needs a current relationship and a current sponsor.

So for an applicant whose relationship has broken down, the partner visa appeal or reapply decision usually favours review, if review is still available and if one of these provisions may apply. In Nugrohowati (Migration) [2023] AATA 2856, a Subclass 820 matter, the reported issues were a court remittal, that the relationship had broken down, claimed family violence, and that the applicant and the sponsor had been in a de facto partner relationship.

Our family violence partner visa page and our article on what happens to a Subclass 820 application if the relationship breaks down explain these provisions. Where the couple are a same-sex couple, our page on LGBTI partner visas explains how the same criteria apply.

Can you seek review and reapply at the same time?

Yes, in some cases it is legally possible to have a review on foot and to lodge a new partner visa application, but it is rarely the right strategy and should never be done without advice. Running two processes at once creates two records of the relationship that will be compared, and any inconsistency between them can be used against the couple in both.

There are also practical risks. The new application is assessed under the rules that apply at its own lodgement date, including Schedule 3 for an onshore applicant who now holds only a bridging visa. The bridging visa position can become complicated. And the Department and the Tribunal may both be asking for evidence at different times on different issues.

Some couples withdraw a review once they have decided to reapply. A withdrawn review cannot simply be restarted later. Withdrawal is therefore a final step that should only be taken once the consequences for lawful status and for the new application are clear.

For most couples, the better approach to the partner visa appeal or reapply question is to choose one path, based on the refusal reason and the applicant's visa position, and to pursue it properly. Our article on getting a second opinion from an immigration lawyer explains how an independent review of the refusal can help with that choice.

Matching the refusal reason to the right path

The refusal reason is the single most useful guide in any partner visa appeal or reapply decision. Each refusal ground engages a different criterion, and each criterion behaves differently on review and on a fresh application.

Refused because the relationship was not accepted as genuine

Where the Department was not satisfied that the relationship is genuine and continuing, review is often the natural path. The genuine relationship criteria in regulation 1.09A for de facto partners and regulation 1.15A for spouses look at four aspects: the financial aspects of the relationship, the nature of the household, the social aspects and the nature of the commitment. The Tribunal assesses these afresh, with updated evidence, and can hear directly from both partners.

Reapplying in a genuineness case usually puts the same evidence before the same Department, with an earlier refusal on the file. Unless the evidence has materially changed, a second application may meet the same outcome. Our guides to partner visa relationship evidence, preparing evidence of a genuine relationship and the partner visa relationship statement explain how the relationship is proved, and our pages on Form 888 supporting statements and Form 888 example answers explain how witnesses support it.

Refused because the de facto relationship was too short when the application was made

Where a de facto couple applied before the relationship had existed for the required period, and no exception applied, reapplying may be the only real answer. The requirement is a time-of-application criterion. New evidence on review can show that the relationship in fact began earlier than the Department accepted, but it cannot change the date the relationship actually began.

This is a classic case where the partner visa appeal or reapply decision depends on the facts. If the Department misread the start date, review can correct it. If the Department was right about the start date, review cannot help, unless the relationship is registered or compelling and compassionate circumstances can be shown. Our guides to the de facto partner visa and the 12-month rule and whether you need 12 months of de facto relationship for a Subclass 820 explain the requirement and its exceptions. For a reapplying onshore applicant, the Schedule 3 consequence explained above must still be weighed.

Refused on the sponsorship limitations

Where the refusal was because the sponsor was caught by the sponsorship limitations, the partner visa appeal or reapply decision turns on timing and on compelling circumstances. In Rogers (Migration) [2020] AATA 4743, a Subclass 309 matter, the reported issues were the sponsorship limitations, the fact that five years had not lapsed since the earlier visa application, that five years elapsed during the review process, and a genuine and continuing relationship. In 2002289 (Migration) [2023] AATA 4513, a Subclass 820 matter, the reported issues included two previous sponsorships and compelling circumstances to waive the requirement in a longstanding, committed, registered relationship.

These cases show that the sponsorship question can be revisited on review, including in light of time passing and compelling circumstances. Whether the same result would follow on a new application, and how a new application would interact with the onshore Schedule 3 issue, depends on the facts.

Refused because the couple married or the relationship changed after lodgement

Sometimes the couple's circumstances change after the refusal in a way that answers the reason for refusal. In Sage (Migration) [2019] AATA 4230, a Subclass 300 matter, the reported issues were that the applicant had validly married the sponsor after the Prospective Marriage visa was refused, notified the Tribunal of the marriage before the review was determined and provided a marriage certificate. A change of this kind can be put before the Tribunal on review, and it may make a separate new application unnecessary.

Refused on character, health or the integrity criterion

Character, health and PIC 4020 refusals are where the partner visa appeal or reapply decision is least intuitive. A new application does not escape any of them. The same character test, the same health criterion and the same integrity criterion apply to every application.

PIC 4020 is especially important. It allows refusal where the applicant has given a bogus document or information that is false or misleading in a material particular, in the current application or in a visa application made within a period before it. A refusal under PIC 4020 can also affect later applications for a period. Reapplying immediately after a PIC 4020 refusal can therefore make the position worse, not better. Review gives the applicant the chance to show that the information was not false or misleading, or was not material. In TRUONG (Migration) [2024] AATA 680, a Subclass 820 matter, the reported issues included false or misleading information in a material particular, a previous visitor visa application, marital status, and the parties being separated but still living together.

Character refusals under section 501 follow their own review pathway, and our visa cancellations page explains it. Health refusals usually turn on the Medical Officer of the Commonwealth opinion and, where available, a health waiver. In each of these cases, the partner visa appeal or reapply decision should be made with advice on the specific criterion.

Refused because the application was incomplete or a request was not answered

Some refusals happen because the Department asked for information and did not receive it, or because a natural justice letter was not answered. Review allows the missing material to be provided to the Tribunal. A new application would also allow it, but at the cost of a new lodgement date and, onshore, possibly Schedule 3. Our articles on responding to a section 56 request for more information and to an S57 natural justice letter for a partner visa explain how these requests work.

Time, cost and risk compared

In general terms, review and reapplying both take time, both cost money and both carry risk, but the risks are different. The list below sets out the main differences in the partner visa appeal or reapply comparison for an onshore applicant.

• Lodgement date: review keeps the original date. A new application has a new date, and every time-of-application criterion is tested again.
• Visa status at application: review keeps the status the applicant had when the original application was made. A new onshore application is made with the applicant's current status, often a bridging visa only.
• Schedule 3: review applies Schedule 3 only if it applied to the original application. A new onshore application by a person without a substantive visa engages Schedule 3.
• Bridging visa: review usually keeps the bridging visa from the original application. A new application may carry a different bridging visa with different conditions.
• Decision maker: review puts the case before an independent Tribunal that decides afresh. A new application goes back to the Department, with the earlier refusal on file.
• Cost: review requires the Tribunal fee. A new application requires a full visa application charge and new supporting checks.
• Evidence: both paths allow new evidence. On review, the evidence is directed at the Tribunal's findings on the contested criteria.

For an offshore Subclass 309 applicant, the Schedule 3 and bridging visa rows fall away, which is why the partner visa appeal or reapply decision offshore is more often a practical choice than a legal one.

Evidence: what changes between the two paths

Both paths allow the couple to put new and better evidence forward, but the purpose of the evidence differs. On review, the evidence answers the specific findings in the refusal decision, and the Tribunal can test it at a hearing. On a new application, the evidence must prove every criterion again from the beginning, and must also answer the earlier refusal, because the new decision maker will read it.

In both cases, the relationship statement remains the couple's own account. It should be accurate, consistent with earlier statements and corrected by the couple wherever earlier documents were wrong. Inconsistencies between the original application, the review and any new application are one of the most common reasons a second attempt fails. Our guide to the 820 partner visa evidence checklist and our Form 80 guide are useful when gathering documents. Changes of address or circumstances during either path should be notified, using Form 1022 where the application is still with the Department.

Risks of reapplying while a refusal stands

Reapplying does not erase the refusal. The refusal remains on the Department's records, the reasons for it remain on file, and the new application will be read against it. Choosing reapplication in a partner visa appeal or reapply decision without dealing with the refusal reasons is one of the most common avoidable mistakes.

There are also risks that are easy to miss. A new onshore application by a person on a bridging visa engages Schedule 3. A new application can expose inconsistencies between what was said before and what is said now, which can engage PIC 4020. And once the review period ends without a review application, the opportunity for independent merits review of the first refusal is gone. Our article on why Subclass 820 partner visas are refused and our guide to why partner visas get refused set out the common refusal grounds that a second application must answer.

Common mistakes in the partner visa appeal or reapply decision

Most poor outcomes in a partner visa appeal or reapply decision come from a small number of avoidable mistakes. Each one is easy to make when a couple is shocked by a refusal and wants to act quickly.

• Reapplying onshore without checking Schedule 3. A person who held a substantive visa when the first application was lodged may hold only a bridging visa now. A new onshore application can bring Schedule 3 into a case that never had it.
• Assuming review is a second chance at the same officer. The Tribunal is independent and decides afresh. Treating the review as a formality, and putting nothing new before the Tribunal, wastes the strongest feature of the partner visa appeal or reapply comparison.
• Reapplying with the same evidence. A new application that does not answer the earlier refusal will usually be read against it.
• Changing the account of the relationship. Dates, addresses and events that differ from the first application can engage PIC 4020 and damage credibility on both paths.
• Letting the sponsor miss the offshore review. In a Subclass 309 case, the review right belongs to the sponsor. If the sponsor does not apply in time, it is lost.
• Travelling without checking the bridging visa. Leaving Australia on the wrong bridging visa can end the right to return and, in some cases, end the onshore pathway altogether.

Each of these mistakes can be avoided by treating the partner visa appeal or reapply decision as a legal question first, and a practical question second. Couples comparing their options can also read partner visa lawyer vs doing it yourself and our guide to partner visa lawyer services in Australia.

What happens if the review is unsuccessful

If the Tribunal affirms the refusal, the couple may still have further options, but those options are narrower than before. Judicial review in the courts is available only where the Tribunal made a legal error. It is not a second merits review. Our judicial review page explains what that involves.

After an unsuccessful review, an onshore applicant who remains in Australia will usually hold only a bridging visa that ends after a set period, and any new partner visa application will engage section 48 and Schedule 3 as explained above. An offshore applicant can generally reapply. This is another reason to make the partner visa appeal or reapply decision carefully at the start. Choosing review is not a choice against reapplying later. In many cases it is a choice to try the stronger path first while keeping a new application in reserve.

Questions to answer before choosing

Before deciding, a couple should be able to answer each of the following questions with confidence. Together they are the practical checklist for any partner visa appeal or reapply decision.

• What exactly was the reason for refusal, and which criterion did the decision maker find was not met?
• Is that criterion tested at the time of application or at the time of decision?
• Where was the applicant when the original application was made, and where are they now?
• What visa did the applicant hold when the original application was made, and what visa do they hold today?
• Does any visa the applicant holds carry condition 8503?
• Would a new onshore application engage Schedule 3, and if so, how strong are the compelling reasons?
• For an offshore case, is the sponsor able and willing to apply for review and take part in it?
• Does the refusal involve PIC 4020, character or health, which a new application cannot avoid?
• What deadline applies to review, as stated in the refusal letter?

Couples who lodged the original application themselves often find that a fresh review of the file answers these questions quickly. Our articles on hiring an immigration lawyer after lodging your own visa application and on urgent immigration lawyer advice explain how to get advice quickly when time is short. A lawyer can be appointed to the review using Form 956.

Advice on partner visa refusals across Australia

Couples facing a partner visa appeal or reapply decision live in every part of Australia and overseas, and consultations with My Migration Lawyers are held by video. Clients in New South Wales often find us through our pages for partner visa lawyers in Sydney and partner visa lawyers in Parramatta. In Victoria and Queensland, couples often start with partner visa lawyers in Melbourne, partner visa lawyers in Brisbane and partner visa lawyers on the Gold Coast. Couples in Western Australia, South Australia, the Australian Capital Territory and Tasmania can read about partner visa lawyers in Perth, partner visa lawyers in Adelaide, partner visa lawyers in Canberra and partner visa lawyers in Hobart. Where the matter involves more than a partner visa, our pages for immigration lawyers in Sydney and immigration lawyers in Melbourne explain the wider services. The same law applies wherever the couple lives, because it is set by Commonwealth legislation.

How My Migration Lawyers advises on a partner visa appeal or reapply decision

My Migration Lawyers acts in many partner visa refusal matters, including complex cases where the choice between review and a new application is finely balanced. The firm regularly deals with refusals involving genuineness findings, Schedule 3, condition 8503, sponsorship limitations, PIC 4020 and offshore sponsor reviews, and is capable of handling these matters from the refusal letter through to the Tribunal's decision or a new application.

When a couple brings a partner visa appeal or reapply question to the firm, the work starts with the refusal decision itself, not with a form. In practice, My Migration Lawyers:

• reads the refusal decision closely and identifies the precise criterion the decision maker found was not met;
• works out whether that criterion is tested at the time of application or at the time of decision, and whether review can cure it;
• checks the applicant's full visa history, current visa and conditions, including section 48, Schedule 3 and condition 8503, before any new application is considered;
• confirms who holds the review right, the applicant onshore or the sponsor offshore, and the deadline stated in the refusal letter;
• compares the earlier application with the evidence now available, to identify inconsistencies that could engage PIC 4020;
• advises in writing on which path fits the couple's circumstances, and why; and
• acts on the chosen path, preparing the review application and submissions, or preparing a new application that answers the earlier refusal directly.

The relationship statement is always the couple's own account. My Migration Lawyers reviews it with them, they correct it, and the firm presents it in the form the law requires. The lawyer decides which legal arguments are put and prepares the submissions. The firm is led by Weiwei Zhang, Principal Lawyer. You can read more about My Migration Lawyers and our partner visa lawyers service.

If your partner visa has been refused and you are still within the review period, do not wait to decide. Book a consultation to have your partner visa appeal or reapply options assessed against your refusal decision, or call 1300 040 300.