Partner Visa Exclusion Period: Applying During a 3-Year Ban

A partner visa exclusion period is the 3-year ban many couples are told applies when the overseas partner left Australia as an unlawful non-citizen, on certain bridging visas, or after a visa cancellation. The most important fact about the partner visa exclusion period is one that is widely misunderstood: the 3-year exclusion criteria in PIC 4013 and PIC 4014 are not criteria for the Australian partner visas.

That means the partner visa exclusion period does not stop a couple from applying for a Subclass 309 offshore partner visa, a Subclass 820 onshore partner visa or a Subclass 300 prospective marriage visa inside the 3 years. It does not mean the past does not matter. Other exclusion rules do apply to partner visas, the ban can still block a visitor visa, and the immigration history will be examined closely.

This guide explains who is caught by PIC 4014, how the period is counted, why it is not a partner visa criterion, which exclusion rules do apply, how waivers work and how to apply for a Subclass 309 visa during the period. For the full visa framework, read the complete guide to partner visas in Australia. For advice on a specific history, the firm's partner visa lawyers page explains how My Migration Lawyers works on these matters.

What is the partner visa exclusion period?

The partner visa exclusion period is the common name for the 3-year ban created by public interest criterion 4014 in Schedule 4 of the Migration Regulations 1994, which prevents the grant of certain visas to a person who last left Australia as an unlawful non-citizen or as the holder of a Bridging C, D or E visa.

An exclusion period is not a ban on applying. Department of Home Affairs policy on exclusion periods states that a person potentially subject to an exclusion period can validly apply for a visa. The exclusion rule operates at the grant stage. If the visa applied for lists the exclusion criterion, and the person is caught by it, the visa cannot be granted unless the exclusion period has passed or the decision maker is satisfied that a waiver applies.

The Migration Regulations contain five exclusion criteria. Two are in Schedule 4 and three are in Schedule 5:

• PIC 4013: a 3-year exclusion after certain visa cancellations.
• PIC 4014: a 3-year exclusion after leaving Australia unlawfully or on a Bridging C, D or E visa.
• SRC 5001: a permanent bar after deportation or certain character cancellations.
• SRC 5002: a 12-month exclusion after removal from Australia.
• SRC 5010: a 2-year interval for certain students supported by a foreign government.

People usually mean PIC 4014 when they talk about a partner visa exclusion period, because it is the rule that catches overstayers who leave Australia. Those who were removed or deported face different rules, explained in the short answer on getting a partner visa after being deported.

The key step in Department policy is the first one. The decision maker checks whether the visa subclass lists PIC 4013, PIC 4014, SRC 5001, SRC 5002 or SRC 5010 as a criterion. If it does not, there is no exclusion period for that visa, and the decision maker continues processing the application.

Does the partner visa exclusion period apply to a Subclass 309, Subclass 820 or Subclass 300 visa?

No. PIC 4014 and PIC 4013 are not criteria for the Subclass 309, Subclass 100, Subclass 820, Subclass 801 or Subclass 300 visa, so the 3-year partner visa exclusion period does not prevent the grant of a partner visa.

This is the point many couples, and much of the information online, get wrong. Department policy on exclusion periods states plainly that not all visas have exclusion criteria, and gives the example that PIC 4013 and PIC 4014 are criteria for a Subclass 417 Working Holiday visa but not for a Subclass 309 Partner (Provisional) visa.

The partner visa criteria confirm this. The public interest criteria listed for each partner visa are:

• Subclass 309: clause 309.225 lists PIC 4001, 4002, 4003, 4004, 4007, 4009, 4020 and 4021, and PIC 4019 for applicants aged 18 or over.
• Subclass 100: clause 100.222 lists PIC 4001, 4002, 4003, 4004, 4007, 4009, 4020 and 4021, and PIC 4019 where relevant.
• Subclass 820: clause 820.223 lists PIC 4001, 4002, 4003, 4004, 4007 and 4009, with PIC 4019 where relevant, and clause 820.226 adds PIC 4020 and 4021.
• Subclass 801: clause 801.223 lists PIC 4001, 4002, 4003, 4004, 4007 and 4009, with PIC 4019 where relevant, and PIC 4020 and 4021 also apply.
• Subclass 300: clause 300.223 lists PIC 4001, 4002, 4003, 4004, 4007, 4009, 4010, 4019, 4020 and 4021.

Neither PIC 4013 nor PIC 4014 appears in any of those lists. A partner who left Australia as an overstayer two months ago can lodge a Subclass 309 application now, and the departure within the last 3 years is not, of itself, a legal ground for refusal.

This is why the phrase "partner visa exclusion period" can mislead. A couple who believes the partner visa exclusion period applies may wait 3 years for no legal reason, living apart and losing time. Others pay for a waiver submission addressing a criterion that does not exist for their visa. The correct starting point is to identify the criteria that actually apply to the visa being sought. The Subclass 820 versus Subclass 309 comparison explains how the two main partner visa pathways differ.

What the partner visa exclusion period does not change

The absence of PIC 4014 from the partner visa criteria does not make the immigration history irrelevant. A person who left Australia unlawfully is likely to face questions about:

• whether the relationship is genuine and continuing, or was formed to obtain a migration outcome;
• whether the person gave false or misleading information in any application, which engages PIC 4020;
• whether the person owes money to the Commonwealth, which engages PIC 4004;
• whether the person was removed or deported, which engages special return criteria 5001 and 5002 for the Subclass 309 and Subclass 300; and
• character, where there were police matters during the stay, which engages PIC 4001 and section 501.

Each of these is covered below. The partner visa refusal reasons guide explains how these issues lead to refusals when they are not addressed at lodgement.

Who is caught by PIC 4014, the rule behind the partner visa exclusion period?

PIC 4014 catches a person who last left Australia as an unlawful non-citizen, or as the holder of a Bridging C, Bridging D or Bridging E visa, unless one of the 28-day exceptions in PIC 4014(5) applies.

Under PIC 4014(4), the risk factor applies if the person left Australia:

• as an unlawful non-citizen, meaning without any visa in effect; or
• as the holder of a Bridging C (Class WC) visa, a Bridging D (Class WD) visa or a Bridging E (Class WE) visa.

The typical person caught by the partner visa exclusion period is someone who overstayed a visitor visa or student visa for a long period, was located or came forward, was granted a Bridging E visa to make departure arrangements, and then left Australia. The partner visa after overstaying guide covers that history in more detail, and the short answer on whether a past overstay affects a partner visa sets out the main points.

Which bridging visas trigger the partner visa exclusion period?

Only the Bridging C, Bridging D and Bridging E visas are named in PIC 4014(4). A person who left Australia holding a Bridging A or Bridging B visa is not caught by PIC 4014.

The distinction matters in practice. A Bridging A visa is usually granted when a person applies for a new substantive visa while holding one, and a Bridging B visa is a travel facility granted to a Bridging A or Bridging B holder. The Bridging Visa B guide and the overview of bridging visas A, B, C and E explain each class. A Bridging C visa is usually granted to a person who applies for a substantive visa without holding one, and a Bridging E visa is commonly granted to an unlawful non-citizen to resolve their status or make departure arrangements. The partner visa on a Bridging Visa E and partner visa Bridging Visa C guides explain those visas in a partner visa context.

The 28-day exceptions in PIC 4014(5)

PIC 4014(5) excludes three groups from the partner visa exclusion period and from the 3-year ban generally. The risk factor does not apply if:

• the person left Australia within 28 days after a substantive visa held by them ceased to be in effect;
• the bridging visa held at departure was granted within 28 days after the person's substantive visa ceased; or
• the bridging visa held at departure was granted while the person held another bridging visa, which itself was granted while the person held a substantive visa or within 28 days after the substantive visa ceased.

Department policy gives two examples. In the first, a person's substantive visa ceased on 1 January, a Bridging E visa was granted on 4 January, and a second Bridging E visa was granted while the first was in effect. The person left on the second Bridging E visa and is not caught, because the first bridging visa was granted within 28 days. In the second, the first Bridging E visa was granted 10 days after the substantive visa ceased, but the second was granted 29 days after it ceased and a third followed. The person left on the third and is caught, because the visa held immediately before the departure visa was granted one day outside the 28-day period.

These exceptions turn on exact dates. A person who believes the partner visa exclusion period applies should check the date the last substantive visa ceased, the grant date of every bridging visa and the departure date from movement records. The short answer on being unlawful for more than 28 days explains why the 28-day line appears so often in partner visa law.

Who is not caught by PIC 4014

A person who left Australia while holding a substantive visa, such as a visitor visa, student visa or work visa that was still in effect, is not caught by PIC 4014. Nor is a person whose visa expired and who left within 28 days. A person who was removed by the Department is in a different position again, because removal engages special return criterion 5002 rather than PIC 4014. The short answer on whether a person can get a partner visa if they have been asked to leave Australia covers the earlier stage of that process.

How is the partner visa exclusion period counted?

The 3-year partner visa exclusion period starts on the date the person left Australia and is measured to the date a new visa application is made, not the date of the decision.

PIC 4014(1)(a) is satisfied if the application is made more than 3 years after the departure. The Department policy instruction describes the end date as three years after the date of departure. In practical terms, a person who left on 15 March 2025 is outside the exclusion period for an application made after 15 March 2028.

Because the test looks at the date the application is made, lodging a visitor visa application a week before the 3-year anniversary and waiting for it to be decided after the anniversary does not satisfy PIC 4014(1)(a). The applicant would still need the waiver in PIC 4014(1)(b). Where a visa that lists PIC 4014 is needed, timing the lodgement correctly avoids an unnecessary refusal.

The partner visa exclusion period is not restarted by later applications. Department policy notes that PIC 4014 must be considered with each subsequent application made within the period. A refusal of one visitor visa application does not extend the 3 years.

Can more than one exclusion period run at once?

Yes. A person can be subject to more than one exclusion period at the same time, and the periods run concurrently. Department policy gives the example of a person whose visa was cancelled for incorrect information and who was then removed from Australia. That person faces the 3-year PIC 4013 period from the cancellation date and the 12-month SRC 5002 period from the removal date, if both criteria apply to the visa sought. For a partner visa, only SRC 5002 of those two would be relevant to a Subclass 309 or Subclass 300 application, because PIC 4013 is not a partner visa criterion.

Is the partner visa exclusion period recorded anywhere?

The Department checks its own movement records and client records to work out whether an exclusion period applies. Applicants often do not have exact dates. Where dates are uncertain, the departure date and visa history can be confirmed from the Department's records before lodging. The partner visa lawyer for applicants with visa history problems guide explains how a visa history is reconstructed and checked.

PIC 4013: the cancellation-related partner visa exclusion period

PIC 4013 creates a 3-year exclusion from the date a visa was cancelled on certain grounds, but like PIC 4014 it is not a criterion for the Subclass 309, Subclass 820 or Subclass 300 visa.

A person is affected by a PIC 4013 risk factor if a previous visa was cancelled:

• under section 109 of the Migration Act 1958 for incorrect information or bogus documents, or under section 116(1)(d), section 133A or related provisions (PIC 4013(1A));
• under section 116, 128 or 133C on prescribed grounds, including working without authority or breaching certain visa conditions (PIC 4013(2));
• automatically under section 137J, for a student visa where attendance or academic performance conditions were breached (PIC 4013(2A)); or
• on the ground in section 116(1)(e), that the person's presence was or might be a risk to the health, safety or good order of the community or an individual (PIC 4013(3)).

The period runs for 3 years from the cancellation. Under PIC 4013(1)(a), it is measured to the date the new application is made. If the cancellation was set aside by a court, or was revoked in a way that means the visa is taken never to have been cancelled, the risk factor does not apply. Department policy explains that a cancellation set aside by the Tribunal is treated as operative until the date it was set aside.

For a couple, the point is the same as for PIC 4014. A cancellation-related partner visa exclusion period does not stop the grant of a partner visa, because PIC 4013 is not listed in the partner visa criteria. The partner visa after visa cancellation guide explains what does matter after a cancellation, and the short answer on whether you can apply for a partner visa if your visa was cancelled sets out the first steps.

Why the cancellation ground still matters

The reason for the cancellation can still affect a partner visa through other criteria:

• A section 109 cancellation for incorrect information may raise PIC 4020, especially if the cancelled visa was held in the 12 months before the partner visa application was made. PIC 4020(1) looks at the current application and any visa held in the 12 months before it.
• A section 501 character cancellation engages special return criterion 5001 for the Subclass 309 and Subclass 300, which is a permanent bar unless the cancellation was revoked or the Minister later granted a permanent visa. The short answer on a partner visa after a section 501 cancellation and the partner visa section 501 guide explain this pathway.
• A section 116 cancellation for unlawful work may be relevant to credibility and to the genuineness assessment. The partner visa unlawful work history guide explains how that history is dealt with.

A person whose visa is currently being cancelled is in a different position. The visa cancellations page explains how My Migration Lawyers responds to a notice of intention to cancel, and the partner visa cancellation notice guide covers the response process.

Which exclusion rules do apply to partner visas?

The exclusion rules that do apply to partner visas are special return criteria 5001 and 5002 for the Subclass 309 and Subclass 300, the PIC 4020 non-grant periods for all partner visas, and the PIC 4004 debt rule.

A couple who has been told about a partner visa exclusion period should check each of these instead. They are the rules that can actually prevent grant.

SRC 5001: the permanent bar

Clause 309.226 provides that if the Subclass 309 applicant has previously been in Australia, the applicant must satisfy SRC 5001 and SRC 5002. Clause 300.224 is to the same effect for the Subclass 300. SRC 5001 is a permanent bar for a person who was deported under section 200 of the Migration Act 1958 (or earlier equivalent provisions), or whose visa was cancelled under section 501, 501A or 501B and the cancellation was not revoked and no permanent visa has since been granted by the Minister. Department policy states there is no provision to waive SRC 5001. Deportation is a separate topic from the partner visa exclusion period and is dealt with in the firm's separate guide on deportation.

SRC 5002: 12 months after removal

SRC 5002 applies to a person who was removed from Australia under section 198, 199 or 205 of the Migration Act 1958. The visa cannot be granted if the application is made within 12 months of the removal, unless the decision maker is satisfied that 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, justify the grant.

Removal is not the same as leaving on a Bridging E visa. A person who left voluntarily on a Bridging E visa is caught by PIC 4014, which does not apply to partner visas. A person who was removed is caught by SRC 5002, which does apply to the Subclass 309 and Subclass 300. In many cases, the 12-month SRC 5002 period, not the 3-year partner visa exclusion period, is the real timing issue for a removed person. The short answer on whether marrying an Australian citizen can stop removal explains the position before removal happens.

PIC 4020: non-grant periods for false information

PIC 4020 applies to every partner visa. It requires that the applicant has not given a bogus document or information that is false or misleading in a material particular in relation to the current application, or a visa held in the 12 months before the application was made. It also creates non-grant periods:

• 3 years after a refusal under PIC 4020(1) for bogus documents or false or misleading information, which can be waived under PIC 4020(4); and
• 10 years after a refusal under PIC 4020(2A) for failing to establish identity, which cannot be waived.

The PIC 4020(4) waiver uses the same compelling and compassionate wording as the exclusion criteria. The partner visa false information refusal guide and the partner visa previous false documents guide explain how these cases are handled. Where a previous agent lodged false material, the short answer on false documents lodged by a previous agent is relevant.

PIC 4004: debts to the Commonwealth

PIC 4004 requires that the applicant does not owe a debt to the Commonwealth, or has made arrangements to repay it that are acceptable to the Department. Removal and detention costs can create a debt. The partner visa immigration debt guide and the short answer on whether you can get a partner visa if you owe money to the Australian Government explain how repayment arrangements are made.

Where does the partner visa exclusion period still affect couples?

The partner visa exclusion period still affects couples where the overseas partner needs a visa that does list PIC 4014, most commonly a visitor visa to visit Australia while the partner visa is processed, or as a step towards an onshore Subclass 820 application.

PIC 4014 is a criterion for many temporary visas. Department policy gives the Subclass 417 Working Holiday visa as an example. Visitor visas are generally understood to include PIC 4013 and PIC 4014 among their criteria. That means a partner caught by PIC 4014 is unlikely to be granted a visitor visa within the 3 years unless the waiver in PIC 4014(1)(b) is accepted.

Visiting Australia during processing

Many couples plan for the overseas partner to visit while the Subclass 309 is being processed. Where the partner visa exclusion period applies, that plan needs a visitor visa application with a waiver submission. The visiting Australia during partner visa processing guide and the short answer on whether you can visit Australia while a Subclass 309 is processed explain the general rules. A visitor visa refusal also has to be disclosed in later applications, and the partner visa after visitor visa refusal guide explains how that affects the partner visa.

Applying onshore for a Subclass 820 visa

A Subclass 820 visa must be applied for in Australia. A partner who is outside Australia and caught by PIC 4014 has no straightforward way to enter Australia during the 3 years, because the visitor visa route is itself subject to the partner visa exclusion period. Even where a visitor visa is granted with a waiver, it may carry condition 8503, which prevents an application for most other visas while in Australia. The partner visa condition 8503 waiver guide and the onshore versus offshore partner visa comparison explain why the Subclass 309 is usually the practical pathway during the period.

The overseas partner is still in Australia

Some couples search for information on the partner visa exclusion period before the overseas partner has left. That is the best time to get advice. A person who is in Australia without a visa may be able to apply for a Subclass 820 visa if the Schedule 3 criteria are met or waived. Leaving on a Bridging E visa may trigger the 3-year ban for visitor visas, while staying and applying onshore engages Schedule 3. The Schedule 3 waiver page and the short answer on Schedule 3 for a partner visa explain the onshore pathway. Where the person holds a Bridging E visa now, the short answer on partner visas on a Bridging E visa is the place to start. Leaving should never be decided without checking both pathways first.

How do you apply for a Subclass 309 visa during the partner visa exclusion period?

A Subclass 309 visa can be applied for during the partner visa exclusion period in the same way as any other offshore partner visa: the applicant applies from outside Australia, the Australian partner lodges the sponsorship, and the full immigration history is disclosed and explained.

The steps below reflect how these applications are prepared in practice.

Step 1: Confirm which rules actually apply

Before anything is lodged, establish whether the departure was voluntary, on a Bridging E visa, or a removal, and whether there was any cancellation, refusal or false information. That analysis decides whether the case involves only PIC 4014, which does not apply to the Subclass 309, or SRC 5002, PIC 4020 or PIC 4004, which do. The short answer on a partner visa after multiple refusals explains why refusal history must also be checked.

Step 2: Disclose the immigration history accurately

The application form asks about previous visas, unlawful stay, refusals and cancellations. Every answer must be accurate. An inaccurate answer about the stay that created the partner visa exclusion period can create a new and more serious PIC 4020 problem. The short answer on whether you must disclose a previous visa refusal and the partner visa incorrect answers guide explain the consequences.

Step 3: Address the history in the submission

Even though the partner visa exclusion period is not a criterion, a short legal submission explaining the departure, confirming that PIC 4014 and PIC 4013 are not Subclass 309 criteria, and addressing any criteria that do apply, helps the case officer. Where SRC 5002 or PIC 4020 applies, the submission includes the waiver case.

Step 4: Build strong relationship evidence

A Department officer reviewing an applicant who overstayed may look closely at whether the relationship is genuine. The four aspects assessed are the financial aspects, the nature of the household, the social aspects and the nature of the commitment. The offshore partner visa guide and the partner visa offshore lodgement mistakes guide explain how the evidence is organised. Each partner provides one relationship statement, and people who know the couple can provide Form 888 supporting statements.

Step 5: Prepare for further requests and interviews

Applicants with an unlawful stay history may receive requests for further information or a request to attend an interview. The partner visa interview questions guide and the short answer on whether a section 56 request means a refusal explain what to expect.

Where the Subclass 309 is granted

Under subclause 309.412(1), the applicant must generally be outside Australia when the Subclass 309 is granted, as the short answer on whether you need to be outside Australia when your Subclass 309 is granted explains. Once granted, the Subclass 309 allows the holder to travel to and live in Australia. The partner visa exclusion period has no effect on that grant, because PIC 4014 was never a criterion for it.

Partner visa exclusion period waivers: what is the test?

The waiver test is the same for PIC 4013, PIC 4014, SRC 5002 and PIC 4020: the decision maker must be satisfied that there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the grant of the visa within the period.

For a couple dealing with a partner visa exclusion period, the waiver is relevant in two situations. The first is a visitor visa or other temporary visa that lists PIC 4014, where the partner wants to come to Australia during the 3 years. The second is a partner visa where a criterion that does apply, such as SRC 5002 or PIC 4020, has been triggered.

The test has two limbs. The first limb, compelling circumstances affecting the interests of Australia, is narrow. It covers matters such as significant economic benefit, or a matter of national interest. Most couples rely on the second limb.

The second limb focuses on the Australian partner and other Australian citizens, permanent residents and eligible New Zealand citizens, such as the couple's children. The PIC 4020 policy instruction states that the interests of the applicant are not relevant when considering whether a waiver should apply. The partner visa exclusion period waiver case is therefore built around the Australian sponsor and Australian family members, not the overseas partner's own hardship.

"Compelling" is not defined in the Migration Regulations. It is generally understood to mean circumstances that are forceful and that demand to be given weight. "Compassionate" refers to circumstances that would move a reasonable person to sympathy. The partner visa compelling and compassionate circumstances examples guide and the short answer on what compelling and compassionate circumstances are explain how these words are applied in partner visa cases.

The Australian sponsor's circumstances

The Australian partner's situation is usually the centre of a partner visa exclusion period waiver. Relevant matters include the sponsor's physical or mental health, caring responsibilities, financial hardship caused by separation, employment that ties the sponsor to Australia, and the sponsor's ability to relocate. A sponsor who cannot live overseas because of medical treatment, care of an elderly parent, or children from a previous relationship who must remain in Australia, has a stronger waiver case than a sponsor who can easily travel. The partner visa Schedule 3 waiver when your partner needs care guide shows how carer evidence is presented in a related waiver context.

Australian citizen children

The interests of Australian citizen children are often the strongest factor in a partner visa exclusion period waiver. Matters include the child's age, the effect of a parent's absence, the child's schooling, health and care arrangements, and whether the child can live overseas. The partner visa compelling reasons and Australian citizen children guide explains how this evidence is assessed. A pregnancy is also relevant, as the Schedule 3 waiver when your partner is pregnant guide explains, and the short answer on whether having a child together helps a partner visa sets out the general position.

Health

Health evidence carries weight where it shows a real need for the couple to be together in Australia. Reports from treating doctors or psychologists, setting out the diagnosis, treatment and the effect of separation, are more persuasive than general statements. Evidence that the sponsor's condition makes overseas travel or relocation impractical is especially relevant.

Length and history of the relationship

A long, well-documented relationship supports a waiver because it shows the circumstances are real and enduring. The partner visa compelling reasons and length of relationship guide explains how length is weighed. A relationship that began after the unlawful stay started is not disqualifying, but the evidence must show genuine commitment.

The immigration history itself

The decision maker will weigh the circumstances against the conduct that created the problem. A long unlawful stay, a failure to comply with Bridging E visa conditions, or false information all count against a waiver. Voluntary departure, cooperation with the Department, honest disclosure and repayment of any debt help. The partner visa compelling reasons not accepted guide explains common reasons waiver submissions fail.

What evidence supports a partner visa exclusion period waiver submission?

A partner visa exclusion period waiver submission should be supported by independent, recent documents that prove each circumstance relied on, not only statements from the couple.

The evidence commonly includes:

• a detailed statement from the Australian sponsor explaining the effect of separation on them and any children;
• medical reports, psychological reports and treatment records for the sponsor or children;
• school letters and child care records for Australian citizen children;
• evidence of the sponsor's caring responsibilities, such as records for an elderly or unwell family member;
• financial evidence showing the cost and hardship of separation or relocation;
• evidence of the sponsor's employment and ties to Australia;
• relationship evidence across the financial, household, social and commitment aspects;
• Form 888 supporting statements from people who know the couple; and
• evidence of compliance since departure, such as repayment of a Commonwealth debt.

The partner visa compelling reasons waiver evidence guide explains how each type of evidence is used. The Schedule 3 waiver submission guide shows how a structured waiver submission is written, and the same structure works for a partner visa exclusion period waiver. The submission should identify the criterion, state the legal test, set out each circumstance with its evidence, and explain why, taken together, the circumstances justify grant within the period.

How has the Tribunal approached the same waiver wording?

The Administrative Review Tribunal and its predecessor have applied the same compelling and compassionate wording in partner visa cases involving PIC 4020, and have sent matters back to the Department for reconsideration where the circumstances supported it.

Cases recorded in partner visa review decisions include the following. Each was remitted, meaning the Tribunal sent the matter back to the Department to reconsider. They do not guarantee any outcome and each turned on its own facts:

• HASSAN (Migration) [2019] AATA 6523 (Subclass 300): the applicant had given false or misleading information, the requirements of PIC 4020 were waived, and a dependent child had been born of the relationship.
• Burns (Migration) [2022] AATA 1657 (Subclass 309): incorrect information in the visa application about countries of previous residence, compelling or compassionate circumstances, and children born of the relationship.
• CHEN (Migration) [2022] AATA 3269 (Subclass 309): a bogus marriage certificate and false information about marital status, with compassionate or compelling circumstances including mental health issues.

These cases show the factors that recur in this area: children of the relationship and health. They also show the importance of the review pathway when a waiver is refused. The partner visa compelling reasons at the ART guide explains how the Tribunal assesses these claims.

What mistakes do couples make with the partner visa exclusion period?

The most common mistake with the partner visa exclusion period is waiting 3 years to apply for a partner visa when PIC 4014 never applied to it.

Other common mistakes include:

• Assuming a waiver is needed for the Subclass 309. It is not needed for PIC 4014 or PIC 4013, though one may be needed for SRC 5002 or PIC 4020.
• Confusing removal with departure on a Bridging E visa. The two trigger different rules with different periods.
• Lodging a visitor visa just before the 3-year anniversary. The test looks at the date the application is made.
• Leaving Australia without advice. A person in Australia may have an onshore Subclass 820 option that is lost by leaving.
• Inaccurate answers about the unlawful stay. This can create a PIC 4020 refusal and a 3-year non-grant period.
• Ignoring a Commonwealth debt. PIC 4004 must be satisfied before grant.

The reapplying for a partner visa after refusal guide and the partner visa after a visa refusal guide explain how to avoid repeating problems in a new application. The short answer on whether a partner visa refusal affects future visa applications explains the long-term effect of a refusal.

What if the partner visa is refused?

If a Subclass 309 visa is refused, the visa applicant can usually apply to the Administrative Review Tribunal in their own name, and the time limit stated in the refusal letter must be met.

A refusal that wrongly relies on a partner visa exclusion period, for example by treating PIC 4014 as a Subclass 309 criterion, is a legal error that can be raised on review. A refusal under SRC 5002 or PIC 4020, where the waiver was not accepted, can be reviewed on the merits with new waiver evidence. As at October 2026, the ART application fee for review of a Part 5 migration decision is $3,580, and a reduced fee of 50% may be available in cases of financial hardship.

Under section 338(9) of the Migration Act 1958 and the 2023 amendments to regulation 4.02, it is the visa applicant who applies for review of a Subclass 309 refusal, not the sponsor. The short answer on who must apply for review of an offshore spouse visa refusal explains this, and the short answer on working out the review deadline explains how to calculate the time limit. The firm's partner visa refusals page, the urgent ART visa refusal applications page and the how to appeal a partner visa refusal guide explain the review process.

How My Migration Lawyers handles a partner visa exclusion period matter

My Migration Lawyers acts for couples where the overseas partner left Australia as an unlawful non-citizen, left on a Bridging C, D or E visa, was removed, or had a visa cancelled, and the couple now wants to apply for a partner visa. The firm deals with complex immigration histories regularly and acts in many matters of this type.

The first task in a partner visa exclusion period matter is to establish what actually applies. Under the supervision of Principal Weiwei Zhang, My Migration Lawyers:

• reconstructs the visa history, including the date the last substantive visa ceased, every bridging visa grant and the departure date, and checks the 28-day exceptions in PIC 4014(5);
• identifies whether the departure was voluntary or a removal, and whether SRC 5001 or SRC 5002 applies;
• checks for any cancellation, refusal, false information or Commonwealth debt that engages PIC 4020 or PIC 4004;
• advises whether a Subclass 309, Subclass 300 or onshore Subclass 820 pathway is available, and whether to apply now rather than wait out a partner visa exclusion period that does not apply;
• prepares the Subclass 309 or Subclass 300 application with an accurate history and a legal submission explaining why PIC 4014 and PIC 4013 are not criteria;
• prepares waiver submissions for SRC 5002, PIC 4020 or a visitor visa that lists PIC 4014, built around the Australian sponsor, children, health and the relationship;
• responds to Department requests, natural justice letters and interview requests; and
• acts on review at the Administrative Review Tribunal if the visa is refused.

Couples who are still in Australia can read about urgent partner visa lodgement before any decision to leave is made. My Migration Lawyers acts for clients across Australia by video, from its office at Level 1, 60 Martin Place, Sydney, including through its partner visa lawyers in Sydney, Melbourne, Brisbane, Perth and Adelaide. The short answer on whether you need a lawyer for an offshore partner visa explains when legal help is most useful.

A partner visa exclusion period question should be checked before the couple waits, lodges or travels. Book a Consultation with My Migration Lawyers, or call 1300 040 300.