Partner Visa Judicial Review: Legal Errors and Options

What is partner visa judicial review?

Partner visa judicial review is the process of asking a court to decide whether a partner visa decision was made according to law. It is usually sought after the Administrative Review Tribunal (ART) has affirmed the Department of Home Affairs' decision to refuse a partner visa. In partner visa judicial review, the court does not decide whether the applicant should have the visa. It decides whether the Tribunal made a legal error that affected its decision.

That distinction is the single most important thing to understand about partner visa judicial review. The Federal Circuit and Family Court of Australia explains in its published guidance that the court determines whether a decision has been made according to law, including whether the correct legal procedures were followed and the law was applied correctly. The court states plainly that it does not consider the merits of the application or whether the person should or should not be granted a visa.

Many people who search for partner visa judicial review are in the same position. The Department refused their Subclass 820, Subclass 801, Subclass 309, Subclass 100 or Subclass 300 application. They applied to the Tribunal. They attended a hearing, gave evidence and waited for a decision. The Tribunal then affirmed the refusal. They are now asking whether there is anything left to do. This article explains what partner visa judicial review can and cannot do, which errors may justify it, the time limit, the bridging visa position, the costs risk and the alternatives that may sometimes be better.

If your partner visa has been refused and the Tribunal has not yet decided your review, the court process is not the right starting point. Read our guide to partner visa refusal appeal options and what to expect from an ART review after a visa refusal. If the Tribunal has already affirmed the refusal, our judicial review lawyers page explains how My Migration Lawyers approaches court matters.

Why "appeal" is the wrong word

People often describe partner visa judicial review as an appeal against the Tribunal. In everyday speech that is understandable, but legally it is misleading. An appeal in the ordinary sense allows a higher body to look at the facts again and substitute its own view. Judicial review does not. The court reviews the lawfulness of the decision, not its correctness on the facts. A Tribunal decision can be harsh, and a reader may think it is wrong, without containing any legal error at all. In that situation partner visa judicial review will not help.

Applicants who understand this early make better decisions. They do not spend time and money on a court case that cannot address their real complaint. They also do not miss a genuine legal error because they assumed the court would simply hear their story again. For a wider explanation of review pathways across visa types, see our article on choosing a visa appeal lawyer.

When is partner visa judicial review available?

Partner visa judicial review is generally available once the Tribunal has made its decision on the review and affirmed the refusal. At that point the visa application is treated as finally determined. Section 11A of the Migration Act 1958 provides that a visa application is finally determined when it is no longer subject to any form of review by the Tribunal. Department policy on merits review confirms that once the Tribunal decides the review, the application cannot be reopened or varied by the Department. The only routes left are a court, a request to the Minister or a different application.

Partner visa judicial review is therefore the legal mechanism for challenging a Tribunal decision that was not made according to law. The applicant in the Tribunal is the person who usually brings it. Department policy notes that the Department itself may also seek judicial review of a Tribunal decision in limited circumstances, but that is rare and is not the subject of this article.

Who can apply

The person who applied to the Tribunal is normally the applicant in partner visa judicial review. In an onshore partner visa matter, that is the visa applicant. In an offshore matter, such as a refused Subclass 309 visa or Subclass 300 Prospective Marriage visa, the review was usually brought by the Australian sponsor, so the sponsor is commonly the person who applies to the court. Members of the family unit whose applications were combined with the main application are affected by the outcome.

Decisions that are not reviewed by the Tribunal

Some partner visa decisions never reach the Tribunal. Examples include certain decisions made personally by the Minister and some character decisions. In those cases, judicial review may be the first and only review available. Those decisions raise different issues and are discussed in our articles on visa cancellations and visa refusals. This article focuses on the most common situation, which is partner visa judicial review of a Tribunal decision affirming a refusal.

What partner visa judicial review cannot do

Partner visa judicial review cannot re-hear the relationship, cannot receive new relationship evidence in the ordinary way and cannot result in a visa being granted by the court. These three limits explain why many people who apply to the court are disappointed, and why careful advice before filing matters.

It is not a re-hearing of the merits

The court does not decide whether the relationship is genuine and continuing. That question belongs to the Department and, on review, to the Tribunal. The court will not reweigh the evidence about joint finances, living arrangements, social recognition or commitment. It will not prefer the applicant's evidence over the Tribunal's findings simply because the applicant says the Tribunal got it wrong.

The Federal Court's published migration law guide makes the same point. It states that the court cannot review the merits of a migration decision, only whether it has been affected by jurisdictional error. A finding that the applicant's evidence was not credible, or that the relationship was not genuine, is a finding of fact. It can only be challenged in partner visa judicial review if it was reached through a legal error, such as ignoring relevant material, applying the wrong test or denying procedural fairness.

No new evidence about the relationship

The court generally decides the case on the material that was before the Tribunal. The Federal Circuit and Family Court states that it does not take new factual information into account unless it is relevant to whether the decision maker made a jurisdictional error. This is where many applicants misunderstand partner visa judicial review. New photographs, a new joint lease, a recent bank statement or a new Form 888 supporting statement will not usually be considered by the court as proof that the relationship is genuine.

Evidence can sometimes be relevant to show how an error occurred. For example, an affidavit may show that a document was sent to the Tribunal before the decision but was not considered, or that a hearing notice did not reach the applicant. That is evidence about the process, not new evidence about the relationship. Applicants who want to put further relationship evidence before a decision maker usually need a different pathway, which is discussed later in this article.

The court cannot grant the visa

The court does not grant visas. If partner visa judicial review succeeds, the usual result is that the Tribunal's decision is set aside and the matter is sent back to the Tribunal to be decided again according to law. The court's guidance describes this as referring the case back to the decision maker and preventing the Minister from acting on the decision. The Tribunal then reconsiders the review. It may reach the same result again, lawfully, or a different one.

Which court hears partner visa judicial review?

Most partner visa judicial review applications are heard by the Federal Circuit and Family Court of Australia (Division 2). Under section 476 of the Migration Act 1958, that court has jurisdiction over most migration decisions, including Tribunal decisions on partner visa refusals. The Federal Court's migration law guide confirms that most migration cases are heard by the Federal Circuit and Family Court, and that the Federal Court hears migration matters at first instance only in limited circumstances, such as when a case is transferred to it.

The Federal Circuit and Family Court of Australia was formed in 2021, replacing the Federal Circuit Court. Older decisions, Department policy and many websites still refer to the Federal Circuit Court. When readers see that name in older material, it refers to the court that now operates as Division 2 of the Federal Circuit and Family Court for migration matters.

What the court application involves

Partner visa judicial review starts with an application filed in the court's registry in the approved form for migration matters. The application must identify the decision under review and set out the grounds, which are the legal errors alleged. Department policy on bridging visas refers to an "Application under the Migration Act 1958" filed at the court registry, stamped with a registration number, as evidence that judicial review has been sought. The Minister for Immigration is the respondent. The Tribunal is usually joined as a party but normally takes no active part.

After filing, the court usually lists the matter for a first court date, gives directions for the exchange of documents, and later lists it for a final hearing before a judge. The Minister is normally represented by lawyers. The court book will contain the Tribunal's decision, the material before the Tribunal and the parties' submissions. Grounds are frequently refined once the full record is available, which is one reason the record should be obtained and read carefully.

Appeals after the first court decision

If the first court dismisses the application, there may be a further appeal. The Federal Court's guide states that a migration appeal, or an application related to an appeal, is heard only in the Federal Court. A further appeal to the High Court requires special leave, which is granted only in a small number of cases that raise questions of general importance. These later stages have their own short time limits, so the same urgency applies.

The partner visa judicial review time limit

The time limit for partner visa judicial review is short, it runs from the date of the Tribunal's decision, and the court can extend it only in limited circumstances. Sections 477, 477A and 486A of the Migration Act 1958 set the time limits for applying to the Federal Circuit and Family Court, the Federal Court and the High Court. The period is counted from the date of the migration decision, not from the date the applicant read it or obtained advice.

This is the deadline that matters most. Applicants commonly lose time in the days after a Tribunal decision because they are distressed, they wait for a relative to read the reasons, or they assume they can file once they have collected money or documents. None of those reasons stops the time running. The safest course is to obtain legal advice on partner visa judicial review as soon as the Tribunal decision arrives.

Can the court extend the time?

Yes, but only in limited circumstances and never as a matter of course. The Act allows the court to extend the period if it is satisfied that it is necessary in the interests of the administration of justice. The court's own guidance states that a person who needs an extension must ask for it in the application and explain why, and that the court will decide whether to grant it. Courts commonly look at the length of the delay, the explanation for it, any prejudice to the Minister and whether the proposed grounds have merit.

An extension of time also has a serious bridging visa consequence. Department policy states that a person who applies for an extension after the statutory time limit has passed cannot be granted a "judicial review" Bridging A, Bridging B or Bridging C visa, because those visas require an application for judicial review made within the statutory time limit. Missing the time limit therefore affects both the court case and the person's lawful status. People who can still act within time should do so.

What to do in the first days after the Tribunal decision

Anyone considering partner visa judicial review should take four steps immediately. First, keep the Tribunal's decision and statement of reasons and note the date of the decision. Second, collect every document lodged with the Department and the Tribunal, the hearing notice, any letters inviting comment and any recording or notes of the hearing. Third, check the current bridging visa and its conditions. Fourth, book urgent advice. Our page on urgent immigration lawyer advice explains how time critical matters are handled, and the firm's partner visa refusals page explains the wider refusal process.

What is a legal error in partner visa judicial review?

A legal error, in partner visa judicial review, is a mistake in the way the Tribunal understood or applied the law, or in the process it followed, that is serious enough to mean the decision was not made according to law. Courts call this jurisdictional error. The Federal Court's migration guide gives examples such as identifying a wrong issue or ignoring relevant material. A decision affected by jurisdictional error is treated as no valid decision at all, which is why the court can set it aside.

Not every mistake is a jurisdictional error. A Tribunal may misdescribe a date, give little weight to a document, or prefer one witness over another, and the decision may still be lawful. The error usually needs to be material. In broad terms, that means there must be a realistic possibility that the decision could have been different if the error had not occurred. This materiality requirement explains why partner visa judicial review often fails even where the applicant can point to something the Tribunal got wrong. The question is not whether there was a flaw, but whether the flaw was a legal error that could have changed the result.

The search for a legal error starts with the Tribunal's statement of reasons. The Tribunal must give written reasons for its decision. Those reasons show what the Tribunal thought the issues were, what evidence it considered, what findings it made and which legal tests it applied. A lawyer reviewing a matter for partner visa judicial review reads the reasons against the full file to see whether the Tribunal asked the right questions, considered what it was required to consider and followed a fair process.

Common legal errors in partner visa judicial review

The legal errors most often raised in partner visa judicial review fall into a small number of categories. Each is explained below in plain terms. Whether any of them exists in a particular case can only be decided by reading the actual decision and the record.

Misapplying regulation 1.15A or regulation 1.09A

Most partner visa refusals turn on whether the couple are in a genuine and continuing relationship. For married couples, regulation 1.15A of the Migration Regulations 1994 sets out the matters relevant to a spouse relationship. For de facto couples, regulation 1.09A does the same. Both regulations require the decision maker to consider all the circumstances of the relationship, including the financial aspects, the nature of the household, the social aspects and the nature of the persons' commitment to each other.

Errors arise where the Tribunal treats one aspect as decisive and does not engage with the others, applies a rigid checklist instead of looking at all the circumstances, or asks the wrong question. A common example is assessing the relationship at the wrong time. Some criteria are assessed at the time of application and others at the time of decision. A Tribunal that finds a relationship had ended by the hearing, and then treats that finding as answering a time of application question without separate consideration, may have misunderstood the criterion. Another example arises in de facto cases, where the Tribunal must apply the specific de facto requirements, including the period of the relationship before application where it applies, and any registration of the relationship. Our articles on de facto partner visas and the 12 month de facto requirement for Subclass 820 explain these rules.

It is important to be honest about the limits here. If the Tribunal correctly identified the test, considered all four aspects and simply was not satisfied on the evidence, that is a merits finding. Partner visa judicial review will not succeed merely because the applicant believes the evidence was strong. Our article on why partner visas get refused explains the factual weaknesses that commonly lead to refusals.

Failing to consider evidence or a claim

The Tribunal must deal with the case that is put to it. If an applicant clearly raised a claim, or provided evidence that was important to an issue the Tribunal had to decide, and the Tribunal's reasons show that it overlooked that claim or evidence, there may be a legal error. Examples include ignoring a Form 888 statement that directly addressed a disputed issue, overlooking evidence of cohabitation during the critical period, or failing to deal with an argument that compelling reasons existed to waive a Schedule 3 criterion.

The Tribunal is not required to mention every document. A failure to refer to a piece of evidence does not automatically mean it was ignored. The question is whether, read fairly as a whole, the reasons show that the Tribunal did not consider something it was legally required to consider. This is why careful comparison of the reasons against the relationship statement, the submissions and the evidence is the core work in assessing partner visa judicial review.

Procedural fairness and adverse information

Procedural fairness, sometimes called natural justice, requires the Tribunal to follow a fair process. In partner visa matters, the Migration Act 1958 sets out specific procedures. Among them, section 359A requires the Tribunal, in many cases, to give the applicant particulars of information that it considers would be the reason, or a part of the reason, for affirming the decision, to explain why it is relevant and to invite a response. Section 360 deals with the invitation to appear before the Tribunal to give evidence and present arguments.

Errors in this area are among the most common grounds of partner visa judicial review. Examples include relying on a statement made by a former partner or a third party that was never put to the applicant, relying on information from the Department's file that was not disclosed, failing to give a proper invitation to a hearing, or refusing an adjournment in circumstances that made the hearing unfair. The rules have important exceptions, and not all information must be disclosed. Whether information fell within those rules is a technical question. The equivalent obligation at the Department stage is explained in our article on the section 57 natural justice letter, and the Department's power to request information is covered in our guide to the section 56 request for more information.

Misunderstanding time of application criteria and Schedule 3

Onshore partner visa applications have criteria that must be met at the time the application was made. For a Subclass 820 application, clause 820.211 sets out those requirements. An applicant who did not hold a substantive visa when applying must usually satisfy additional Schedule 3 criteria, unless the decision maker is satisfied that there are compelling reasons for not applying them. Our guides to the Schedule 3 criteria for partner visas and the Schedule 3 partner visa waiver explain this area in detail.

Legal errors here include misidentifying which Schedule 3 criteria apply, assessing compelling reasons at the wrong point in time, failing to consider circumstances that were put forward as compelling reasons, or treating the waiver question as answered by a finding about the relationship without considering it separately. Errors can also arise where a person held a visa with a no further stay condition, such as condition 8503, and the Tribunal misunderstood whether the application could validly be made. Our article on condition 8503 and Subclass 820 explains that issue. These questions are where careful legal analysis most often identifies an arguable point for partner visa judicial review, and they are a core part of the firm's Schedule 3 waiver work.

Errors in applying PIC 4020

Public Interest Criterion 4020 allows a visa to be refused where an applicant gave, or caused to be given, a bogus document or information that is false or misleading in a material particular. A PIC 4020 refusal can have consequences beyond the current application. Errors arise where the Tribunal does not make a proper finding that the information was false or misleading in a material particular, does not consider whether the information was given by or on behalf of the applicant, or does not deal with the waiver question where it applies.

The Tribunal must also follow a fair process before relying on adverse information about false statements. A PIC 4020 finding based on undisclosed information, or on a misunderstanding of what the applicant actually said in a form or interview, is a common subject of partner visa judicial review. The Form 80 and the Form 1022 change of circumstances are frequent sources of disputed information.

Errors in the family violence provisions

Where a relationship has ended and the applicant claims to have suffered family violence committed by the sponsoring partner, Division 1.5 of the Migration Regulations 1994 may allow the visa to be granted despite the relationship breakdown. The applicant must still show that the relationship was genuine before it ended. The family violence can be judicially determined or non-judicially determined, and the regulations set out the evidence required for each.

Legal errors include failing to consider a family violence claim that was clearly raised, applying the wrong evidentiary requirements, deciding a question that the regulations require to be referred to an independent expert, or failing to consider whether the relationship was genuine at the relevant time before it ended. Our firm's family violence partner visa page and our article on Subclass 820 relationship breakdown explain these provisions.

Sponsorship limitation errors

Partner visa sponsorship is subject to limits on previous sponsorships and on sponsors with certain criminal history. Some refusals turn on these limits rather than on the relationship. The Tribunal may err by misreading the relevant dates, failing to consider whether compelling circumstances existed, or misapplying the test for approving a sponsor. See our pages on partner visa sponsorship limitations and the related article on sponsorship limitations.

Legal unreasonableness

A decision may also be set aside if it is legally unreasonable. This is a demanding standard. It does not mean the decision was one the court disagrees with. It means the decision, or the way a discretion was exercised, lacks an evident and intelligible justification. In partner visa judicial review, unreasonableness arguments sometimes arise where the Tribunal refused an adjournment for no apparent reason, made a finding that no rational decision maker could make on the evidence, or exercised a discretion in a way that cannot be explained. These arguments succeed only in clear cases, and they should not be used as a way of re-arguing the facts.

Partner visa matters the Tribunal reconsidered after a court remittal

Tribunal decisions published in recent years show that partner visa judicial review can result in a matter returning to the Tribunal, and that the Tribunal then decides it again on the law and the evidence. The decisions below are drawn from published Tribunal decisions in which, after a court had remitted the matter, the Tribunal reconsidered the review and remitted the application to the Department. Only the reported issues are described. Each turned on its own facts, and none indicates how any other matter will be decided.

• Harpreet Singh (Migration) [2019] AATA 5689: a Subclass 820 matter following a Federal Circuit Court remittal, in which the reported issues were the Schedule 3 criteria, an application lodged outside the relevant timeframe and compelling reasons for waiver.
• Hassan (Migration) [2021] AATA 2159: a Subclass 820 matter following a court remittal, in which the reported issues were that the applicant did not hold a substantive visa at the time of application, the sponsor's significant illnesses and whether compelling reasons existed.
• Yeung (Migration) [2020] AATA 4137: a Subclass 820 matter following a Federal Circuit Court remittal, in which the reported issues included incorrect information in the visa application and Department interviews and the non-disclosure of a meeting through an introduction agency.
• Javed (Migration) [2021] AATA 3007: a Subclass 820 matter following a Federal Circuit Court remittal, in which the reported issues were a genuine spousal relationship that had ceased, a family violence claim and evidence tested before a court.
• Nugrohowati (Migration) [2023] AATA 2856: a Subclass 820 matter following a court remittal, in which the reported issues were a de facto relationship that had broken down and claimed family violence.
• He (Migration) [2021] AATA 5325: a Subclass 820 matter following a Federal Court remittal, in which the reported issue was whether the applicant had been in the de facto relationship for at least the 12 month period.
• Ho (Migration) [2023] AATA 405: a Subclass 820 matter following a Federal Circuit and Family Court remittal, in which the reported issues included financial pooling and shared accommodation with other co-tenants.
• DOAN (Migration) [2026] ARTA 202: a Subclass 820 matter following a Federal Circuit and Family Court remittal, in which the reported issues included whether the relationship was genuine and continuing at the time of application.

These decisions do not show that partner visa judicial review usually succeeds, and they say nothing about the court's reasons in each case. They show the issues that have arisen in partner visa matters returned to the Tribunal, which closely track the categories of legal error discussed above: Schedule 3, time of application criteria, false information, family violence and the de facto requirements.

What happens if partner visa judicial review succeeds?

If partner visa judicial review succeeds, the court usually sets aside the Tribunal's decision and sends the matter back to the Tribunal to be decided again according to law. The court does not grant the visa and does not direct the Tribunal to grant it. The review application is then undecided again, and the Tribunal must make a fresh decision.

When the matter returns, the Tribunal will usually reconsider the whole review, not only the point on which the court found an error. In practice, the matter is often heard by a different Tribunal member. The applicant may be invited to a new hearing and can usually provide updated evidence and submissions. This is the stage at which new relationship evidence, updated Form 888 statements and changes in circumstances can properly be put forward. The Tribunal may then affirm the refusal again, if it does so lawfully, or set the decision aside and remit the application to the Department.

This is why a successful partner visa judicial review is best understood as a second chance at the Tribunal, not a win on the visa. Preparation for the remitted hearing matters as much as the court case. The firm's guide to Subclass 820 visa refusals explains the issues the Tribunal commonly examines, and our Subclass 820 visa page explains the onshore criteria the Tribunal will apply.

What if the court dismisses the application?

If the court dismisses the application, the Tribunal's decision stands. The applicant may consider an appeal, if there is a proper basis, within the appeal time limit. If there is no further review, the applicant's bridging visa will cease after the court proceedings are completed, and the applicant must consider whether any other visa can be applied for or whether they need to depart Australia. Advice on these options should be obtained before the court decision is delivered, not after.

Bridging visa during partner visa judicial review

A person in Australia who applies for partner visa judicial review within the statutory time limit may be able to obtain a bridging visa in association with the court application. Department policy describes these as "judicial review" bridging visas. They are separate from the bridging visa that was granted with the partner visa application, which ceases a set period after the Tribunal's decision.

The judicial review Bridging A visa

Department policy states that a person may be granted a "judicial review" Bridging A visa only if they held a Bridging A or Bridging B visa at the time of making the judicial review application, and the court application was made within the statutory time limit. If the earlier bridging visa had already ceased before the court application was filed, that criterion cannot be met. This is another reason why partner visa judicial review must be started promptly. Our guides to the Bridging A visa, the Bridging B visa and bridging visas in Australia explain how these visas work.

Policy also confirms that family members whose applications were combined with the application under review may be able to obtain a judicial review bridging visa even if they are not themselves parties to the court proceedings. The applicant must provide evidence that the court application was filed, such as the stamped application issued by the court registry.

Bridging E visas and extensions of time

Where a person's earlier bridging visa has ceased, or the person has applied for an extension of time, a Bridging E visa may sometimes be available instead. Department policy states that a person who applies for an extension of time after the statutory time limit has passed cannot be granted a judicial review Bridging A, B or C visa, but may in certain circumstances be granted a Bridging E visa. Bridging E visas commonly carry stricter conditions.

Work rights and conditions

The conditions on a judicial review bridging visa may differ from the conditions on the bridging visa held during the partner visa application. Department policy notes that a person who has sought judicial review of a refused substantive visa is assessed against the judicial review criteria and receives the conditions prescribed for that visa. Applicants should not assume that their previous work rights continue. Our article on Subclass 820 work rights and bridging visas explains the position during the application itself.

If the matter is sent back

Department policy states that where judicial review of a refused substantive visa results in the decision being remitted for reconsideration, a Bridging E visa granted in respect of that judicial review remains in effect in accordance with the relevant Schedule 2 provisions. The bridging visa position during the remitted Tribunal review should be checked carefully in each case.

Costs risk in partner visa judicial review

The main financial risk in partner visa judicial review is an adverse costs order. The Federal Circuit and Family Court states that, generally, the unsuccessful party has to pay the legal costs of the successful party. In practice, the Minister is usually represented by lawyers, so an applicant whose case is dismissed is commonly ordered to pay the Minister's costs, in addition to their own legal costs.

Costs orders are enforceable debts. An unpaid debt to the Commonwealth may also be relevant to later visa applications, because some visas include a public interest criterion dealing with debts to the Commonwealth. Costs can also be ordered against a party for particular steps, such as an adjournment. The court's migration guide notes that an applicant granted an adjournment may be ordered to pay the other side's costs for that day.

Discontinuing early can reduce, but does not always remove, the costs exposure. For this reason, an honest assessment of the prospects of partner visa judicial review before filing is not a formality. It is the most important protection an applicant has against spending money on a case that cannot succeed. A second opinion on an existing assessment is sometimes useful, and our article on obtaining an immigration lawyer second opinion explains when that makes sense.

Alternatives to partner visa judicial review

Partner visa judicial review is not always the best option, and sometimes it is not an option at all. Where there is no arguable legal error, or where the real problem is a lack of evidence, another pathway may be more appropriate. Several alternatives are outlined below in general terms. Each depends on the person's circumstances and the law that applies to them.

A fresh partner visa application

A further partner visa application may be possible where the relationship is continuing. A person in Australia who has been refused a visa and does not hold a substantive visa is affected by section 48 of the Migration Act 1958, which limits the visas they can apply for onshore. Department policy confirms that a person subject to section 48 may still apply for a Subclass 820 and Subclass 801 visa under regulation 2.12, provided additional validity requirements are met, including a sponsorship form and two statutory declarations from eligible persons. Schedule 3 criteria may also apply. Our article on applying for a partner visa after a visa refusal explains this pathway, and our Subclass 820 visa guide explains the criteria.

A fresh application allows the couple to address the gaps identified in the refusal and the Tribunal decision with new evidence. That is something partner visa judicial review cannot do. An offshore application for a Subclass 309 visa may also be an option for some couples. Where a PIC 4020 finding was made, the effect of that finding on any new application must be checked first.

A different visa

Some applicants may be eligible for a different visa altogether, depending on their qualifications, family or other circumstances. This needs to be assessed against the section 48 bar and any conditions on visas previously held. Our immigration lawyers in Australia article explains the breadth of migration advice the firm provides.

The family violence provisions

Where the relationship ended because of family violence by the sponsor, the family violence provisions may be relevant. If those provisions were not properly raised or considered at the Department or the Tribunal, that may itself be a ground for partner visa judicial review. If the family violence occurred after the Tribunal decision, the position is more complex and needs specific advice.

A request to the Minister

Section 351 of the Migration Act 1958 gives the Minister a personal, non-compellable power to substitute a more favourable decision for a decision of the Tribunal if the Minister thinks it is in the public interest to do so. The Minister is not required to consider a request. Department policy states that the Bridging C visa provisions do not provide grounds for a bridging visa for a person who has sought Ministerial intervention after a Tribunal affirmed a refusal. A request to the Minister can sometimes be made after, or alongside, a decision about court proceedings, but it should not be treated as a substitute for acting within the court time limit where there is a genuine legal error.

Choosing between the options

The choice between partner visa judicial review and the alternatives is a legal judgement. It depends on whether there is an arguable legal error, whether the relationship is continuing, the bridging visa position, any section 48 or Schedule 3 issues, any PIC 4020 finding, and the costs risk. Couples who previously handled their application themselves may find our article on partner visa lawyer versus DIY useful, and those already represented who want to change immigration lawyer can read how that works.

Common mistakes after a Tribunal partner visa decision

Applicants commonly make five mistakes when considering partner visa judicial review. Each one can be avoided with early advice.

• Waiting for the reasons to sink in. The time limit runs from the date of the decision. Days spent waiting are days lost.
• Treating the court as a second Tribunal. The court will not reweigh the relationship evidence. Grounds that simply say the Tribunal was wrong about the relationship will not succeed.
• Collecting new relationship evidence for the court. New evidence about the relationship is generally irrelevant in the court. It may matter later if the matter is remitted, or in a fresh application.
• Ignoring the bridging visa. A judicial review bridging visa usually depends on holding a Bridging A or Bridging B visa when the court application is filed, within the statutory time limit.
• Ignoring costs. An unsuccessful applicant is usually ordered to pay the Minister's costs. That risk must be weighed honestly before filing.

How My Migration Lawyers acts on partner visa judicial review matters

My Migration Lawyers acts urgently when a client brings a Tribunal decision affirming a partner visa refusal, because the time limit for partner visa judicial review leaves no room for delay. The firm's first task is to read the Tribunal's decision and statement of reasons in full, and to obtain and review the complete file: the application, every submission and document lodged with the Department and the Tribunal, the hearing record and any adverse information that was put, or should have been put, to the applicant.

The firm then identifies whether there is an arguable legal error. That means testing the Tribunal's reasons against regulations 1.15A and 1.09A, the time of application criteria, Schedule 3, PIC 4020, the family violence provisions, sponsorship limitations and the procedural requirements of the Migration Act 1958. Where an arguable error exists, the firm advises on the grounds, the bridging visa position and the costs risk, and prepares and files the court application within the statutory time limit. Where the matter is remitted to the Tribunal, the firm prepares the client for the new hearing with updated evidence and submissions.

Just as important, the firm advises honestly when there is no arguable legal error. In that case the firm explains why partner visa judicial review is unlikely to help and advises on the alternatives, including a fresh partner visa application, a different visa, the family violence provisions or a request to the Minister, and the steps needed to keep the client lawful. No outcome can be promised in any court or visa matter.

My Migration Lawyers deals with complex partner visa matters, including refusals involving Schedule 3, PIC 4020, family violence, de facto relationship requirements and sponsorship limitations. The firm acts in many partner visa refusal and review matters of this exact type and is capable of handling them through the Tribunal and the courts. The firm's work is overseen by Weiwei Zhang, Principal Lawyer. You can read more about My Migration Lawyers, visit our partner visa lawyers page, see what to expect from an immigration lawyer consultation, or browse the partner visa guide and the My Migration Lawyers blog.

My Migration Lawyers acts for clients across Australia, including through our pages for partner visa lawyers in Sydney, Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra, Hobart and Parramatta. Clients comparing firms can read our guides to the best partner visa lawyer in Australia, including in Sydney, Melbourne, Brisbane and Perth.

If the Tribunal has affirmed your partner visa refusal and you are still within time, book a consultation with My Migration Lawyers today so the decision and your file can be reviewed for partner visa judicial review without delay. You can also call My Migration Lawyers on 1300 040 300.