Partner Visa Cancellation Review: Options and Deadlines

What is a partner visa cancellation review?

A partner visa cancellation review is an application to the Administrative Review Tribunal for merits review of a decision by the Department of Home Affairs to cancel a partner visa. The Tribunal does not simply check the Department's paperwork. It considers the case again, on the evidence before it at the time of its own decision, and it can reach a different conclusion. A partner visa cancellation review is often the only practical way to restore a cancelled Subclass 820, Subclass 801, Subclass 309, Subclass 100 or Subclass 300 visa without leaving Australia. Each of these visas is explained in our complete partner visa guide.

The Administrative Review Tribunal replaced the Administrative Appeals Tribunal on 14 October 2024. Many people still search for an "AAT appeal" of a visa cancellation. The correct body is now the ART, and every new partner visa cancellation review is lodged there. For a broader picture of how the Tribunal works, see our guide to what to expect at an ART review, and for the firm's cancellation work generally, see our visa cancellation lawyers page.

This article is written for people whose partner visa has already been cancelled, or whose sponsor's or family member's visa has been cancelled, and who now need to decide what to do. It explains which decisions can be reviewed, the deadline, who can apply, the visa position during the review, what the Tribunal looks at, the hearing, the possible outcomes and the options that exist when a partner visa cancellation review is not available.

A partner visa cancellation review is not a response to a notice

A partner visa cancellation review starts after the decision has been made. Before cancellation, the Department usually sends a notice inviting the visa holder to comment. That is a separate stage with its own rules. Once the Department has decided to cancel, the opportunity to persuade the delegate has passed. The question becomes whether the decision can go to the Tribunal, how quickly the application must be lodged and how the case will be presented.

People often confuse the two stages. Some keep writing to the Department after cancellation, believing the delegate will reconsider. In most cases the delegate has no power to reopen a cancellation decision once it is made. Correspondence sent to the Department does not stop the review period running, in the same way that a reply to a section 56 request is part of processing and not a review, and it is not a substitute for a valid partner visa cancellation review application.

Why the decision letter matters

The cancellation decision letter is the most important document in any partner visa cancellation review. It states the section of the Migration Act under which the visa was cancelled, the date of the decision, whether the decision is reviewable and the time within which review must be sought. It also contains, or is accompanied by, the delegate's reasons.

The letter should be read carefully, but its statement of review rights should still be checked by a lawyer. The law sets the review period, not the letter. The way the letter was sent can also affect the date from which time runs. Anyone holding a cancellation letter should keep the envelope, the email and any ImmiAccount message that delivered it, because those records may be needed to work out the deadline. A short urgent advice consultation is usually the fastest way to confirm the position.

Which partner visa cancellation decisions can be reviewed?

Most decisions by a delegate of the Minister to cancel a partner visa held by a person who is in the migration zone (in practical terms, in Australia) at the time of cancellation can be reviewed by the ART. Section 338(3) of the Migration Act makes these decisions reviewable migration decisions. The Department's own policy confirms that cancellation decisions under section 109 and section 116 are reviewable under section 338(3).

Section 338(3) also lists exceptions. A cancellation decision is not reviewable under that provision if it was made while the person was in immigration clearance, if it was made under section 133A, section 133C, section 134 or section 501, or if it was made personally by the Minister under section 109, section 116 or section 140(2). Character cancellations under section 501 have their own review pathway under section 500, discussed below. The correct pathway for a partner visa cancellation review therefore depends on the exact power used.

Section 109 cancellations for incorrect information

Section 109 allows the Department to cancel a visa where the holder did not comply with the information obligations in the Migration Act, for example by giving incorrect information in the visa application or failing to correct information that became incorrect. Partner visa cancellations under section 109 commonly follow allegations about the history of the relationship, previous marriages, undisclosed children, travel history or character matters that were not declared.

A section 109 decision made by a delegate while the holder is in Australia is reviewable. A partner visa cancellation review of a section 109 decision is particularly important because of section 114. If a section 109 cancellation is set aside on review, the visa is taken never to have been cancelled. That outcome removes later consequences that would otherwise attach to the cancellation. Correcting a previous error honestly is often central to these cases, and our guide to Form 1022 change of circumstances and the Form 80 guide explain how the Department expects information to be updated.

Section 116 cancellations under the general power

Section 116 is the general cancellation power. It allows cancellation on a range of grounds, including that the circumstances that permitted the grant of the visa no longer exist, that the holder has not complied with a visa condition, and other grounds prescribed in regulation 2.43 of the Migration Regulations 1994. For temporary partner visa holders, section 116 is most often used where the Department believes the relationship has ended or never existed, whether the couple are married or in a de facto relationship.

A section 116 decision made by a delegate while the holder is in Australia is a reviewable migration decision. Many partner visa cancellation review cases involve a Subclass 820 holder whose relationship has broken down. Where the relationship ended because of family violence, or where there is a child of the relationship, the law may still allow the holder to progress to a permanent Subclass 801 visa. Those provisions are discussed in our guides to family violence partner visa claims and what happens when a Subclass 820 relationship breaks down.

Section 501 character cancellations by a delegate

A delegate's decision to cancel a partner visa on character grounds under section 501 is not a Part 5 reviewable migration decision. It is instead reviewable by the ART under section 500 of the Migration Act, provided the person was in Australia when the decision was made. If the person was outside Australia at that time, there is no right of review of a discretionary section 501 decision.

Character reviews follow different rules from ordinary partner visa cancellation review cases. The time limit is shorter, the Tribunal must apply a binding ministerial direction made under section 499, and the evidence needed is very different. The protection of the Australian community, the best interests of any children, the strength of the person's ties to Australia and the impact on the Australian partner all become central. Anyone in this position should get advice the same day the decision is received from an immigration lawyer experienced in partner visas.

Mandatory cancellation under section 501(3A)

A mandatory cancellation under section 501(3A) cannot be reviewed by the ART. Section 500(4A)(c) expressly excludes a delegate's decision to cancel a visa under section 501(3A) from both section 500 review and Part 5 review. Mandatory cancellation is usually triggered by a prison sentence of a particular length or by certain sexual offences involving a child, while the person is serving a full time custodial sentence.

The pathway instead is a request to revoke the cancellation under section 501CA(4). If a delegate decides not to revoke, that decision is reviewable by the ART under section 500(1)(ba). In practical terms, a partner visa holder affected by mandatory cancellation must first make strong revocation representations within the period stated in the notice, and only after a refusal to revoke does a Tribunal review become possible. The period to make representations is short and must not be missed.

Cancellations that cannot be reviewed at all

Some partner visa cancellations cannot be reviewed by the ART. Decisions made personally by the Minister under section 109, section 116 or section 140(2), and decisions under section 133A or section 133C, are not merits reviewable. A cancellation made while the person was in immigration clearance at an airport is also excluded from section 338(3). In these cases a partner visa cancellation review is not available, and the remaining options are usually limited to judicial review for legal error or a fresh visa application where the law permits one.

A visa can also be cancelled consequentially under section 140 when the visa of the person through whom it was obtained is cancelled. For example, a secondary applicant child's visa may be cancelled because the main partner visa holder's visa was cancelled. The usual approach is to challenge the primary cancellation, because the consequential cancellation follows it.

Partner visa holders outside Australia

A partner visa holder who is outside Australia when the visa is cancelled does not have a right to a partner visa cancellation review under section 338(3). This commonly affects Subclass 309 and Subclass 300 holders who have not yet travelled, and Subclass 820 or Subclass 801 holders who are overseas when the decision is made. Offshore cancellations follow a different process that may allow the former holder to seek revocation of the cancellation. Holders of an offshore Subclass 309 visa or a Subclass 300 Prospective Marriage visa should get advice before deciding whether to travel or to respond from overseas.

What is the deadline for a partner visa cancellation review?

The deadline for a partner visa cancellation review is short, strict and runs from the day the person is notified of the decision. Section 347(3) of the Migration Act sets the period for applying to the ART for review of a reviewable migration decision. The period is shorter again for a person who is in immigration detention on the day they are notified. The exact period that applies is printed in the decision letter, but it must be checked against the law.

The safest rule is simple. A partner visa cancellation review application should be lodged as soon as possible after the decision is received, not at the end of the period. Supporting evidence and submissions can be provided after lodgement. The application itself cannot be late.

Can the deadline for a partner visa cancellation review be extended?

No. The time for a partner visa cancellation review cannot be extended. The Department's policy on merits review states that the timeframe to apply for review of a reviewable migration decision cannot be extended, that an application made after the timeframe has ended is not properly made, and that the ART has no jurisdiction to consider an application that is not properly made. The general power in the Administrative Review Tribunal Act 2024 to extend time does not apply to these migration decisions.

The same is true of character decisions. Under section 500(6B), an application for review of a section 501 decision or a section 501CA(4) decision not to revoke, where the person is in Australia, must be lodged within a fixed period after notification under section 501G. Sections 18 and 19 of the ART Act do not apply, so the Tribunal cannot extend that period either. The character review period is shorter than the ordinary period for a partner visa cancellation review.

Detention changes the deadline

A person who is in immigration detention on the day they are notified of the cancellation has a shorter period in which to apply. Cancellation often leads directly to detention, particularly in character cases and where the Department considers the person a flight risk. If the visa holder is detained, family members and the sponsor should contact a lawyer immediately so that the partner visa cancellation review can be lodged within the detention period. Waiting until the person is released is not an option. The firm's contact page lists the ways to reach My Migration Lawyers urgently.

How notification affects the start date

The review period starts from the day the person is notified of the decision, not necessarily the date printed on the decision. The Migration Act contains rules that deem a person to have received a document at a particular time depending on how it was sent, for example by email, by post or by hand. A letter sent by email may be taken to have been received on the day it was sent. A letter sent by post may be taken to have been received some days later. These rules apply even if the person did not read the email or collect the mail.

For this reason, no one should calculate the partner visa cancellation review deadline from the date they happened to open the letter. The calculation should be made from the method of delivery, and if there is any doubt, the earliest possible date should be assumed. A partner visa lawyer can confirm the date from the delivery records.

Who can apply for a partner visa cancellation review?

The person whose visa was cancelled is the person who applies for a partner visa cancellation review of a decision covered by section 338(3). Section 347A of the Migration Act sets out who may apply for review of each kind of reviewable migration decision, and where that person must be when the application is made. The sponsor cannot lodge the review in their own name in place of the visa holder, although the sponsor's evidence is often essential to the review, as it was at the Subclass 820 application stage.

A family member whose visa was cancelled at the same time, for example a dependent child included in the partner visa, should be included in the review in the way the Tribunal requires. The decision letter should be checked to see whether each person's cancellation is covered by the same decision. Where the family member's visa was cancelled consequentially under section 140, the outcome of the main partner visa cancellation review is usually what matters most.

Must you be in Australia to apply?

Yes. Under section 347A(2), an application for review of a decision covered by section 338(3) can only be made by a non-citizen who is physically present in the migration zone when the application for review is made. A partner visa holder whose visa was cancelled in Australia and who then leaves Australia before lodging cannot make a valid partner visa cancellation review application.

Leaving Australia during the review also carries serious risks. Once the visa is cancelled, the person usually holds no visa that allows them to return. A bridging visa granted during the review is unlikely to permit re-entry. Anyone who needs to travel for a family emergency during a partner visa cancellation review should get advice before booking a flight. Our article on Bridging visa B explains why travel rights depend on the type of bridging visa held.

Can a lawyer lodge the review for you?

Yes. A lawyer can prepare and lodge the partner visa cancellation review application on the visa holder's behalf, and can represent them throughout the proceedings. The application is still made in the name of the visa holder. My Migration Lawyers aims to lodge the review application promptly after it is instructed, so that the time limit is protected before the substantive work begins. The first step is usually an immigration lawyer consultation focused on the decision letter. Clients appoint the firm in the usual way, and the process is explained in our guide to Form 956 and Form 956A.

Clients who started the matter with another representative, or who prepared their partner visa themselves, can change representative at any time. Our articles on changing immigration lawyer and getting a second opinion explain how that works without losing time, and our article on hiring a lawyer after lodging your own application covers people who started without help.

What happens to your visa status during a partner visa cancellation review?

When a partner visa is cancelled, the person no longer holds that visa and, unless they hold or are granted another visa, they become an unlawful non-citizen. The Department's cancellation notices warn that an unlawful non-citizen may be detained and removed from Australia. Lodging a partner visa cancellation review does not, by itself, give the person a visa. A separate bridging visa is needed to remain lawful.

The Department's cancellation notices also state that if the person made a further substantive visa application while holding the cancelled visa, any Bridging visa A, B or C granted in relation to that application will also cease. This is significant for Subclass 820 holders. Their permanent Subclass 801 application was usually made at the same time as the Subclass 820 application, and any bridging visa associated with another pending application may also be affected.

Bridging visa E during a partner visa cancellation review

A Bridging visa E (Subclass 050) is the bridging visa most commonly used to keep a person lawful during a partner visa cancellation review. The Department's policy identifies two relevant grounds. Under clause 050.212(4)(c), an officer may grant a Bridging visa E to a person whose visa has been cancelled so that they have lawful status while they make an application for review, if the officer is satisfied they will apply for merits review. Under clause 050.212(4)(b), a person who has applied for review of the cancellation within the allowable period may be granted a Bridging visa E to remain in Australia until the review is decided.

A Bridging visa E is not automatic. It is subject to conditions, and the conditions may restrict work, require the person to report to the Department or require them to live at a particular address. The reasons for the cancellation are taken into account when deciding whether to grant it. For an overview of how bridging visas differ, see our guide to bridging visas in Australia, and for the rights attached to the bridging visa many Subclass 820 applicants previously held, see our guide to Bridging visa A.

What if the Bridging visa E is refused?

A decision to refuse a Bridging visa E can itself be reviewable, and a refusal that leaves a person in detention can be reviewed under section 338(4). The Department's policy also states that where a Bridging visa E is refused to a person who has applied for review of their visa cancellation within time, the obligation to remove the person does not arise until the review of the cancellation is finally determined, and then only if the cancellation is upheld. That protection depends on a valid partner visa cancellation review having been lodged in time, which is another reason to lodge immediately.

Work, Medicare and daily life during the review

The practical effect of cancellation on work rights, study and Medicare depends on the bridging visa granted and its conditions. A person who previously worked under a Bridging visa A or a Subclass 820 visa should not assume they can keep working after cancellation. The conditions of any new bridging visa must be checked before returning to work. Our article on working while waiting for a Subclass 820 visa explains the usual position before cancellation and why it changes afterwards.

What does the Tribunal consider in a partner visa cancellation review?

In a partner visa cancellation review, the Tribunal decides the case again on its merits. Section 54 of the Administrative Review Tribunal Act 2024 allows the Tribunal to exercise all the powers and discretions conferred on the original decision maker. The Tribunal is not limited to the material the delegate had. It considers the evidence before it at the time of its own decision, including evidence that did not exist when the visa was cancelled.

Most partner visa cancellation review cases involve two questions. The first is whether the ground for cancellation actually exists. The second is whether, if the ground exists, the visa should still be cancelled. These questions require different evidence and different submissions, and both must be addressed.

Does the ground for cancellation exist?

The first question in any partner visa cancellation review is whether the legal ground relied on by the delegate is made out. In a section 116 case based on the relationship, that means asking whether the relationship has in fact ended, or whether the circumstances that permitted the grant of the visa no longer exist. In a section 109 case, it means asking whether the information given was in fact incorrect, and whether the person failed to comply with the relevant obligation.

Delegates sometimes find that a ground exists on thin or misunderstood evidence. A period of separate living arrangements for work, an argument recorded in a police event, or an anonymous allegation to the Department may have been treated as proof that the relationship ended. The Tribunal must make its own findings. Where the ground is not made out, the cancellation cannot stand, whatever view the delegate took. Evidence of a genuine and continuing relationship is assessed using the same four aspects that applied at grant: financial aspects, the nature of the household, social aspects and the nature of the commitment. Delegates often rely on the same weaknesses discussed in our guide to Subclass 820 refusal reasons. Our guides on partner visa relationship evidence and preparing evidence of a genuine relationship explain how those aspects are proved.

Should the visa be cancelled anyway?

The second question is whether the visa should be cancelled even if the ground exists. For most section 116 grounds, cancellation is discretionary. The Department's cancellation notices identify the kinds of matters that are weighed, including the purpose of the person's travel to and stay in Australia, the extent of their compliance with visa conditions, the degree of hardship cancellation would cause to the person and their family, the best interests of any child affected, the circumstances in which the ground arose, and the person's past and present behaviour towards the Department.

This is the point on which many partner visa cancellation review cases turn. A holder whose relationship has genuinely ended may still have strong reasons why cancellation is not the correct or preferable decision, such as an Australian citizen child, a pending pathway to permanent residence on family violence grounds, or long and lawful residence. A small number of grounds in regulation 2.43(2) make cancellation mandatory if the ground exists, so the precise ground relied on must be identified at the outset.

Section 109 reviews and the matters the Tribunal must consider

In a section 109 partner visa cancellation review, the Tribunal must consider the matters prescribed by the Migration Regulations for the purpose of deciding whether to cancel. These include the correct information, the content of the incorrect information, the circumstances in which the non-compliance occurred, the person's present circumstances and the time that has passed. The Tribunal must also consider any other relevant matter, including the consequences for the person and their family.

Section 111 of the Migration Act provides that the obligations apply whether the non-compliance was deliberate or inadvertent. That does not mean the reason for an error is irrelevant. An honest error made by a third party, or an answer given in good faith to an ambiguous question, may weigh heavily in favour of not cancelling the visa. Where the Department also suggests the information was false or misleading, the case may have consequences under public interest criterion 4020 for future applications. The relationship between incorrect information and refusal is discussed in our guide to the section 57 natural justice letter.

Character reviews follow a ministerial direction

In a character based partner visa cancellation review under section 500, the Tribunal must apply the binding ministerial direction made under section 499 that governs visa refusal, cancellation and revocation decisions on character grounds. The direction sets out primary considerations, such as the protection of the Australian community and the best interests of minor children in Australia, and other considerations, such as the impact on Australian family members and the strength of the person's ties to Australia. Evidence of rehabilitation, the nature of the offending and the views of the Australian partner are central. Character reviews are among the most demanding cases the Tribunal hears, and the evidence must be prepared quickly because of the short review period.

What evidence matters most in a partner visa cancellation review?

The most important evidence in a partner visa cancellation review is evidence that directly answers the delegate's reasons. The decision record explains why the delegate was satisfied the ground existed and why the delegate decided to cancel. Each finding should be identified and answered with documents, statements and, where appropriate, independent material.

For relationship based cancellations, that evidence commonly includes:

• a fresh, detailed statement from the visa holder and a separate statement from the sponsor, explaining the history and current state of the relationship in their own words;
• joint financial records, such as bank accounts, leases, loans and bills, covering the period the delegate said the relationship had ended;
• evidence of shared living arrangements, or a clear explanation of any period of living apart;
• Form 888 supporting statements from people who know the couple and can speak to the present relationship (see our Form 888 examples for how these are written); and
• an explanation of any incident, report or allegation the delegate relied on.

Our guide to the partner visa relationship statement explains how a statement should be written. In review proceedings, the statement must also deal with the delegate's findings, which is a different task from an initial application. The partner visa document checklist is a useful starting point for gathering records, but review evidence must be targeted to the issues in dispute.

Evidence where the relationship has ended

Where the relationship has genuinely ended, the evidence in a partner visa cancellation review must shift. The question is no longer whether the relationship exists, but whether the law still allows the visa holder to remain, and whether the discretion should be exercised in their favour. Evidence of family violence under Division 1.5 of the Migration Regulations, evidence of a child of the relationship and custody or contact arrangements, and evidence of hardship and ties to Australia all become relevant. Family violence evidence must be prepared carefully, in the form the regulations require. Our family violence partner visa lawyers page explains how the firm approaches these cases.

Evidence in incorrect information cases

In a section 109 partner visa cancellation review, the central evidence usually concerns how the incorrect information came to be given. That may involve the original application, the forms, communications with the person who prepared the application, and evidence of the person's language skills and understanding at the time. It also involves evidence of the person's present circumstances, including their relationship, children, work and community ties. The aim is to present the person's own account, honestly and in the form the law requires, not to reconstruct events to suit the case.

Getting the Department's file

The Tribunal obtains the Department's documents relating to the decision, and the visa holder can request access to the material held by the Tribunal. A request under the Freedom of Information Act 1982 can also be made to the Department. Reading the full file is often the only way to understand what information the delegate relied on, including information from third parties. That review of the file should happen early in the partner visa cancellation review, not on the eve of the hearing. Couples in a same-sex relationship who have privacy concerns about what is on file can read our LGBTI partner visa page.

What happens at a partner visa cancellation review hearing?

At a partner visa cancellation review hearing, a Tribunal member asks the visa holder, and usually the sponsor and other witnesses, questions about the issues in the case. Hearings are commonly held by video or in person. They are less formal than a court, but the evidence is given under oath or affirmation and the member will test it closely. An interpreter is provided where needed.

Before the hearing, the Tribunal will usually invite the applicant to provide written submissions and documents by a set date. The applicant's representative will normally file a written submission identifying the ground of cancellation, the facts in dispute, the relevant law and the reasons the decision should be set aside. A clear written submission focuses the hearing on the issues that matter.

How to prepare for the hearing

Preparation for a partner visa cancellation review hearing should start well before the hearing notice arrives. The visa holder and the sponsor should each re-read their earlier statements, the visa application and the delegate's reasons, because the member will compare their oral evidence with what is already on file. Inconsistencies are not always fatal, but unexplained inconsistencies damage credibility. Witnesses should be told what the hearing is about and should be available on the day.

The Tribunal may raise information that it considers would be a reason for affirming the decision, and the applicant will be given an opportunity to comment on it. That information must be answered fully and promptly. If the applicant fails to appear at a scheduled hearing after receiving proper notice, the Tribunal can dismiss the application, so the hearing date must never be missed.

Should the sponsor give evidence?

In most relationship based partner visa cancellation review cases, yes. Where the delegate found that the relationship had ended or never existed, evidence from the sponsor is usually the most important evidence the Tribunal hears. Where the relationship has ended, the sponsor's evidence may still matter, for example to confirm the history of the relationship or, in some cases, to confirm family violence. Where the sponsor is unwilling to assist, the case must be built around other evidence, and the strategy should be settled early. Questions about a sponsor's limits and obligations are covered on our sponsorship limitations page.

What are the possible outcomes of a partner visa cancellation review?

Under section 105 of the Administrative Review Tribunal Act 2024, the Tribunal can affirm the cancellation decision, vary it, set it aside and substitute a new decision, or set it aside and remit the matter to the Department for reconsideration in accordance with its directions or recommendations. In a partner visa cancellation review, setting aside the cancellation and substituting a decision not to cancel the visa is the outcome that restores the visa. The Tribunal must give a written statement of its decision and reasons.

The outcome of any review depends on the facts, the law and the evidence. No representative can promise a particular result. What a representative can do is make sure the correct pathway is used, the application is lodged in time and the evidence and submissions address every issue the Tribunal must decide.

What happens if the cancellation is set aside?

If the Tribunal sets aside a cancellation decision, the Tribunal's decision replaces the delegate's decision and must be implemented by the Department. For a section 109 cancellation, section 114 provides that the visa is taken never to have been cancelled. For other grounds, the Department's policy treats the cancellation as operative until the date it is set aside. This difference can matter for later visa applications that include an exclusion period linked to cancellation.

For a Subclass 820 holder, the setting aside of the cancellation allows the permanent Subclass 801 application to continue. The Department's policy directs delegates to wait for the outcome of review before deciding the Subclass 801 application where the Subclass 820 visa has been cancelled. The Subclass 820 vs Subclass 801 guide explains how the two stages fit together, and our guide to Subclass 820 processing times explains why the permanent stage is often still pending when cancellation occurs.

What happens if the cancellation is affirmed?

If the Tribunal affirms the cancellation, the partner visa remains cancelled and the review is finally determined. The person is then an unlawful non-citizen unless they hold or are granted another visa. Any Bridging visa E granted for the review will usually cease a short time after the decision. The person must then act quickly to consider whether the Tribunal made a legal error that can be challenged in court, whether a request for Ministerial intervention is appropriate, or whether any other visa application is legally possible.

Judicial review is limited to legal error. A court does not re-decide the merits of the case. Our judicial review page and our article on partner visa appeal options explain the difference. Section 351 of the Migration Act allows the Minister, if the Minister thinks it is in the public interest, to substitute a more favourable decision for a decision of the Tribunal. The Minister has no duty to consider a request, so it should never be relied on as a plan.

When the sponsor's visa is cancelled

A partner visa application can also be affected when the sponsor's own visa is cancelled. A permanent resident sponsor whose visa is cancelled may no longer be eligible to sponsor, and the partner's application may then be refused. In that situation, the sponsor's own review of their cancellation can decide the partner's future as well.

Reported Tribunal decisions include partner visa matters that were remitted after the sponsor's cancellation was set aside. In Vispo (Migration) [2023] AATA 694, a Subclass 820 matter, the reported issue was that the sponsor's permanent visa had been cancelled and a differently constituted Tribunal had set aside the cancellation of the sponsor's visa. In Lei (Migration) [2024] AATA 1166, also a Subclass 820 matter, the sponsor's resident return visa had been cancelled after a criminal conviction and that cancellation was set aside on review, with the Tribunal also considering whether the relationship was genuine and continuing. In Faba-an (Migration) [2020] AATA 4250, a Subclass 820 matter, the sponsor's visa had been cancelled but restored. Each partner visa matter was remitted. These decisions illustrate a practical point: where both partners are affected, the cancellation review and the partner visa should be managed together.

What if a partner visa cancellation review is not available?

If a partner visa cancellation review is not available, the options depend on why. The most common reasons are that the person was outside Australia, that the decision was made personally by the Minister, that it was a mandatory character cancellation, or that the review period has already passed. Each situation has a different pathway, and some have none.

Revocation of a mandatory cancellation

Where a partner visa was cancelled under section 501(3A), the pathway is a revocation request under section 501CA(4). The request must be made within the period and in the manner set out in the notice. It should address whether the person passes the character test or whether there is another reason the cancellation should be revoked, with evidence about the offending, rehabilitation, the Australian partner and any children. If a delegate refuses to revoke, that decision is reviewable by the ART under section 500(1)(ba), and the short character review period then applies.

Making a new visa application in Australia

A person whose visa was cancelled while in Australia is affected by section 48 of the Migration Act. Section 48 limits the visas they can apply for in Australia to prescribed classes. Partner visas are among the prescribed classes, so a person whose relationship continues may be able to lodge a new onshore partner visa application. Additional criteria apply to a person who does not hold a substantive visa when applying, including the Schedule 3 criteria. Some applicants are also affected by a no further stay condition on an earlier visa. These issues are explained in our guides to applying for a partner visa after a visa refusal, waiving Schedule 3 for a partner visa, the Schedule 3 criteria and the Schedule 3 waiver.

A new application is not a substitute for a partner visa cancellation review where review is available. The cancellation may also affect a later application through public interest criteria, including exclusion periods that apply to some visas after certain cancellations, and PIC 4020 where false or misleading information was found. The Department's policy states that PIC 4013 imposes an exclusion period of three years from cancellation on certain grounds, subject to a waiver for compelling or compassionate circumstances, for visas that include that criterion.

Applying from outside Australia

For some couples, an offshore Subclass 309 application is the most realistic path after cancellation. The applicant must then deal with any exclusion period, the integrity issues raised by the cancellation and the practical consequences of leaving Australia, including any exclusion arising from departure as an unlawful non-citizen or on certain bridging visas. That choice should be made only after advice, because departure usually ends any chance of a partner visa cancellation review. Our Subclass 309 visa page explains the offshore pathway.

Common mistakes after a partner visa cancellation

The most damaging mistakes after cancellation are mistakes of time and pathway. The following errors appear repeatedly:

• waiting for a reply from the Department instead of lodging a partner visa cancellation review;
• calculating the deadline from the date the email was opened rather than the date it was sent;
• leaving Australia before lodging, which prevents a valid review application under section 347A(2);
• assuming a Bridging visa A for the Subclass 801 application still applies after cancellation;
• lodging the review but failing to provide evidence that answers the delegate's actual findings;
• treating a character cancellation as an ordinary cancellation and missing the shorter character review period; and
• lodging a new visa application in the hope that it replaces review, without considering section 48 and the effect of the cancellation.

A common misunderstanding is that the Tribunal will simply read the delegate's file and decide. The Tribunal decides on the evidence before it. A review supported by thin evidence asks the Tribunal to reach a different conclusion on the same material. Our article on why partner visas get refused shows how often evidence gaps drive adverse decisions, and the same lesson applies on review. Our article on using a partner visa lawyer or doing it yourself explains why review work is rarely suited to self-representation.

How My Migration Lawyers handles a partner visa cancellation review

My Migration Lawyers acts in partner visa cancellation review matters at the ART, including complex cases involving family violence, incorrect information findings, character concerns, detention and cancellations affecting both partners. The firm deals with these cases regularly and has the experience to handle them under the strict time limits that apply. Every matter is supervised by Weiwei Zhang, Principal Lawyer.

When a client instructs My Migration Lawyers on a partner visa cancellation review, the firm:

• reads the cancellation decision and delivery records the same day, identifies the power used and confirms whether review is available and the exact deadline;
• lodges the review application promptly to protect the time limit, then applies for a Bridging visa E where one is needed;
• obtains the Department's file and identifies every finding the delegate made;
• prepares the visa holder's and the sponsor's statements, Form 888 supporting statements and documentary evidence in the form the Tribunal requires, presenting the client's own account;
• files detailed written submissions on the law, the ground of cancellation and the exercise of the discretion;
• prepares the client and witnesses for the hearing and appears with them; and
• advises on next steps once the Tribunal decides, including the Subclass 801 stage or other options.

Clients can learn more about the firm on our about My Migration Lawyers page and about our wider work as partner visa lawyers, on partner visa refusals and on visa refusals generally. The firm acts for clients across Australia, including through our partner visa lawyers in Sydney, Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra, Hobart and Parramatta. Clients comparing representatives may find our guides to choosing the best partner visa lawyer in Australia, in Sydney and in Melbourne useful, together with our article on what a visa appeal lawyer does.

If your partner visa has been cancelled, time is already running on any partner visa cancellation review. Book a Consultation with My Migration Lawyers today, and have the decision letter ready.

You can also call My Migration Lawyers on 1300 040 300.