Partner Visa Lawyer vs Doing It Yourself: Is Legal Help Worth It?

Is a partner visa lawyer worth the cost, or can you apply yourself?

A partner visa application can be lodged without a lawyer, and legal help earns its cost where something in the immigration history, the timing or the documents engages a criterion that has to be argued rather than simply evidenced. That is the honest answer. It is the same answer whether the application is a subclass 820 lodged in Australia or a subclass 309 lodged outside it.

The question is not whether the couple is genuine. Most applicants who ask this question are in a real relationship and have the photographs, the lease and the joint account to show for it. Genuineness is the part of a partner visa application that applicants handle best on their own, because they are the people who lived it. The part they cannot see is the law that sits underneath the application form.

A partner visa application is assessed against criteria in the Migration Act 1958 and the Migration Regulations 1994. Some of those criteria are satisfied by evidence. Others are satisfied only by an argument, made in writing, supported by material that has to be gathered before the application is lodged rather than after it. An applicant reading the ImmiAccount form cannot tell the two apart, because the form does not mark them. It asks questions. It does not say which answer triggers which criterion.

That is where the cost comparison actually sits. A lawyer is not being paid to prove that two people love each other. A lawyer is being paid to identify, before lodgement, which criteria the application engages, whether each one can be met, and what has to be put in front of the decision maker to meet it. On an application with no complicating features, that work is short and the value of it is modest. On an application with one or more complicating features, that work decides the outcome, and the features are usually invisible to the person filling in the form.

The features that change the answer are specific rather than general. They include an applicant who does not hold a substantive visa at the time of application, a visa carrying condition 8503, a previous visa refusal or cancellation, a de facto relationship shorter than the prescribed minimum period, a sponsor who has sponsored a partner before, a document that could be characterised as bogus, and a request for further information that has already been issued. Each of those is dealt with in this article. If none of them is present, an applicant who is organised and careful can reasonably lodge the application without a lawyer. If one of them is present, the application should be assessed before it is lodged, because the visa application charge paid to the Department of Home Affairs is not usually refunded when an application is refused.

There is one further point that applicants rarely weigh. A partner visa application is not a single event. It is a file that stays open for a long time, and things happen inside it: a request for more information, a change of circumstances, a bridging visa question, a relationship that changes shape, a second stage application for the permanent subclass 801. The decision to use a lawyer is a decision about who carries that file, not only about who completes the initial forms. Anyone weighing that decision can read more about how the firm approaches partner visa matters before deciding.

Can you lodge a partner visa application without a lawyer?

Yes. There is no requirement in the Migration Act 1958 that a visa applicant be represented. An applicant may complete and lodge their own application, respond to the Department themselves, and deal with the Administrative Review Tribunal themselves if the application is refused. A large number of partner visa applications are lodged this way every year.

What the law regulates is not the applicant. It is the people who help the applicant. Giving immigration assistance means using, or claiming to use, knowledge or experience in migration procedure to assist a person with a matter under the Migration Act 1958. The Department states that immigration assistance does not include simply filling in an application form, translating or interpreting, or passing on information about an application without comment or explanation. Anything beyond that is regulated.

Three groups may give immigration assistance in Australia. The first is a registered migration agent, who is registered with the Office of the Migration Agents Registration Authority. The second is a legal practitioner, defined by the Department as a lawyer who holds an Australian legal practising certificate, whether restricted or unrestricted, granted under a law of an Australian state or territory, and who provides immigration assistance in connection with legal practice. The third is an exempt person, being a close family member of the applicant, a sponsor or nominator, a member of parliament or their staff, a public official giving assistance as part of their duties, or a member of a diplomatic mission, consular post or international organisation.

The exempt person category matters to couples who are trying to keep costs down, and it has a hard limit. An exempt person must not charge a fee for the assistance. The Department states that a person who charges a fee in Australia without being registered or a legal practitioner commits an offence, and that serious penalties apply. A sponsor may therefore help their own partner with the application. A friend who is good with paperwork may not be paid to do it.

Whoever assists, the appointment is notified to the Department on Form 956, which is used by a registered migration agent, a legal practitioner or an exempt person to tell the Department that they have been appointed to provide immigration assistance and, where applicable, to receive documents on the applicant's behalf. A separate Form 956 is completed for each matter. Where a person is only authorised to receive documents and gives no assistance, the correct form is Form 956A. The distinction is explained further in the article on Form 956 and Form 956A.

The second point about representation is the one applicants underestimate. Appointing a representative changes where the Department sends correspondence. Written communication goes to the appointed person, and the applicant is taken to have received documents sent to that person as if they had been sent to the applicant. This is why an out of date appointment is dangerous, and why a client who moves between representatives should confirm in writing who is currently recorded on the file. A request for information that arrives at an old address is still, in law, a request that has been given.

None of this makes self lodgement wrong. It makes self lodgement a decision with consequences that should be taken deliberately rather than by default. An applicant who understands the criteria for the subclass 820 partner visa, holds a substantive visa, and has no history of refusal is in a very different position from an applicant who has none of those things and is relying on a checklist found online.

Which partner visa applications are usually straightforward?

An application is usually straightforward where the applicant holds a substantive visa with no restrictive condition, the relationship is either a married relationship or a de facto relationship of at least the prescribed minimum length, neither party has a visa refusal or cancellation in their history, the sponsor has not sponsored a partner before, and the couple has ordinary documentary evidence of their life together.

In that situation the application is an evidence exercise. The applicant completes Form 47SP, the sponsor completes Form 40SP, the couple assembles evidence across the four aspects the Regulations require the decision maker to consider, being the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the couple's commitment to each other, and supporting witnesses complete Form 888 statements. Nothing in that list requires a legal argument. It requires organisation, honesty and patience.

Applicants in this position often do perfectly well on their own, and any lawyer who says otherwise is selling something. It is worth saying plainly, because the opposite claim is common online and it is not true. The realistic risks for a straightforward application are delay and a request for further information, not refusal.

There is still one step that repays a small amount of professional time even in a simple case, and that is the check before lodgement rather than the preparation after it. Most of the features that destroy a partner visa application are historical rather than current. A visa refused years ago in another country. A tourist visa granted with a condition the applicant never read. A sponsor who sponsored a previous partner and has forgotten the date. An applicant who cannot see the problem cannot ask about it, which is why a single consultation before lodgement is a different product from full representation and is priced differently by most firms. Couples comparing that decision may find the article on booking an immigration lawyer consultation useful.

Which partner visa applications need legal advice before lodgement?

An application needs legal advice before lodgement where it engages a criterion that is satisfied by argument rather than by evidence. The following are the recurring ones in partner visa work, and each of them is a reason to take advice before the application is made rather than after it is refused.

The applicant does not hold a substantive visa

Subparagraph 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 provides that an applicant who is not the holder of a substantive visa must satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. The Regulations do not prescribe what amounts to compelling reasons, so the question is decided case by case on the material put forward.

Departmental policy is explicit that a genuine relationship, and the hardship of separation if the applicant has to apply from outside Australia, are as a general rule not compelling reasons, because a genuine relationship is the basis of every partner visa application. Policy treats circumstances beyond the applicant's control as the kind of thing that can be compelling. The Full Federal Court in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 held that the decision maker must consider all of the applicant's circumstances up to the time of decision, not only those existing at the time of application. That case is the reason a waiver submission is a live piece of work throughout the application rather than a paragraph attached at lodgement. This is the single most common point at which a do it yourself partner visa application fails, and it is covered in more detail on the page dealing with Schedule 3 waivers.

The de facto relationship is shorter than the prescribed period

Regulation 2.03A requires an applicant in the classes it lists to have been in the de facto relationship for at least 12 months immediately before the application was made. The exceptions are narrow and are set out in the Regulations. Paragraph 2.03A(3)(b) allows the requirement to be set aside where the applicant establishes compelling and compassionate circumstances. Subregulation 2.03A(5) removes the requirement where the relationship is registered under a prescribed state or territory law, such as the Relationships Register Act 2010 (NSW) or the Relationships Act 2008 (Vic).

Departmental policy describes compelling and compassionate as a high threshold, and states that the genuineness of the de facto relationship does not in itself meet it. Policy also states that pregnancy at the time of application is not, on its own, treated as meeting the threshold. Applicants routinely assume the opposite, and lodge on the strength of a relationship that is real but too short. Registration, where it is available, is often the better answer, and policy accepts registration that occurs after the application is made but before it is decided. The practical detail is set out in the article on the 12 month de facto requirement.

There is a condition, a refusal or a cancellation in the history

Condition 8503, the no further stay condition, prevents the holder from being granted a further substantive visa while in Australia, which includes a partner visa lodged onshore. It has to be waived before an onshore application can validly be made, and the waiver has its own test. Section 48 of the Migration Act 1958 bars a person in Australia whose visa has been refused or cancelled from applying for most further visas while they remain in the country, with only prescribed classes remaining available. Where either of these applies, the choice of subclass and the order of steps is the whole matter, and the answer may be that the application has to be made outside Australia. The position for applicants holding a visa with a no further stay condition is set out in the article on condition 8503 and the subclass 820.

The sponsor has sponsored before

Regulation 1.20J limits how often, and how soon, a person may sponsor a partner. A sponsor who has sponsored a previous partner, or who was themselves granted a partner visa, may be barred from sponsoring unless the limitation is waived on compelling circumstances. Sponsors frequently do not raise this, because they do not know that a sponsorship years ago is relevant to an application today. The limitation and the waiver are explained on the page covering partner visa sponsorship limitations.

What does a partner visa lawyer actually do on the file?

A partner visa lawyer identifies which criteria the application engages, advises whether each can be met, prepares the evidence and the written submission that address them, and then runs the correspondence with the Department until a decision is made. The work is more specific than the phrase "helping with the application" suggests, and it is worth setting out as tasks.

Before lodgement, the work is assessment. That means establishing the applicant's visa status and history, the sponsor's history, whether Schedule 3 is engaged, whether regulation 2.03A applies and whether an exception is available, whether any condition affects the ability to lodge onshore, and whether any document in the applicant's possession creates a risk under Schedule 4. It also means deciding which subclass is correct, because an applicant who can lodge either onshore or offshore is making a decision with long consequences for work rights, travel and timing.

At lodgement, the work is presentation. The submission sets out the applicant's own account and the evidence that supports it, organised against the criteria the decision maker must apply, with the statutory language used rather than avoided. The applicant's personal statement is the applicant's own evidence, read and corrected by them before it is filed. A lawyer does not supply a client with a story. A lawyer makes sure the client's account is complete, consistent with the rest of the file, and expressed in the terms the Regulations use.

After lodgement, the work is management. The Department may request further information under section 56 of the Migration Act 1958, and may put adverse information to the applicant for comment under section 57. Both carry a response period, and both are opportunities that do not come twice. A response that answers the wrong question, or that arrives after the period has closed, is often the last event before a refusal. What to do with a request of this kind is set out in the article on responding to a section 56 request.

The last piece of the work is the one clients notice least and value most in hindsight. Time limits in migration law run from the day a person is taken to have received a document, not the day they read it. Section 494B sets out the methods by which the Department may give a document, and section 494C sets out when the person is taken to have received it. A file that is being watched by someone who knows this does not lose a right by accident.

The mistakes that cost more than a lawyer does

The most expensive do it yourself mistakes are not sloppy forms. They are decisions made without knowing that a decision was being made. Four of them recur.

The first is lodging onshore without a substantive visa and without addressing Schedule 3. The application is valid, the charge is paid, and the criterion is simply not met. By the time the refusal arrives, the applicant is often further from a solution than when they started.

The second is treating the strength of the relationship as an answer to a legal requirement. Departmental policy is clear that genuineness does not establish compelling and compassionate circumstances for the purposes of regulation 2.03A, and that a genuine relationship is not, of itself, a compelling reason to waive Schedule 3. Applications are lodged on that assumption constantly.

The third is a document problem that the applicant did not create. Public Interest Criterion 4020 in Schedule 4 requires the applicant to satisfy the decision maker that they have not given, or caused to be given, a bogus document or information that is false or misleading in a material particular. The Full Federal Court in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 held that the applicant does not have to be knowingly or directly involved for the criterion to be failed. What is required is that the document or information has the quality of purposeful falsity. An applicant who can show an innocent mistake may still satisfy the criterion, but the onus of explaining it sits with the applicant. A failure under this criterion carries a bar on the grant of further visas for a period set by the criterion, and the period is longer where the failure concerns identity. A person who hands over a document prepared by someone else, without checking it, is exposed to all of this.

The fourth is a missed deadline that the applicant did not know had started. It is dealt with in the next section, because it usually arrives after the refusal rather than before it.

What happens if a partner visa is refused after a do it yourself application?

A refusal usually creates a review right, and the period for exercising it is short and strictly applied. Section 347(3) of the Migration Act 1958 sets the period for applying to the Administrative Review Tribunal for review of a reviewable migration decision, and Departmental policy states that the period cannot be extended, that an application made after it has ended is not properly made, and that the Tribunal has no jurisdiction to consider an application that is not properly made.

The period runs from the day the applicant is notified of the decision, and notification is a legal concept rather than a practical one. Where the Department uses a method set out in section 494B, the day of notification is the day the applicant is taken to have received the document under section 494C. An applicant who was overseas, who changed email address, or who never opened the message is in the same position as an applicant who read it immediately. This is the mechanism behind most of the review rights that are lost in Australia each year, and it is the reason a refusal should be taken to a lawyer the day it arrives rather than the week after.

A refusal also changes what can be done next. Section 48 bars a person in Australia whose visa has been refused from applying for most further visas while they remain here, so the option of simply lodging a better application onshore is often gone. The visa application charge already paid is not usually refunded. The applicant may now be on a bridging visa with conditions they did not expect, or may have no lawful status at all. None of these consequences is reversible by trying harder on the second attempt.

This is where the cost comparison at the start of this article resolves itself. The cost of advice before lodgement is known, and it is paid once. The cost of a refusal is the charge already spent, the review application and the work it requires, the time the review takes, and in some cases the loss of the ability to remain in Australia while it is decided. Anyone who has already received a refusal should read the material on partner visa refusals and review and act on the date in the letter, not on the date they understood it.

How My Migration Lawyers acts on partner visa matters

My Migration Lawyers assesses a partner visa matter in a consultation before quoting for it, and sets out the fee and the work it covers in a written costs agreement before any work on the application begins. The firm is led by Weiwei Zhang, Principal Lawyer, and acts for clients across Australia by video and by email.

The assessment comes first because the features that decide a partner visa matter are historical and are not visible on an enquiry form. Whether the applicant holds a substantive visa, what conditions attach to it, whether there has been a previous refusal or cancellation, how long the relationship has existed and in what form, whether the sponsor has sponsored before, and what documents exist on the Department's records rather than in the applicant's folder. Those answers decide which application is available, whether a waiver or an exception has to be argued, and what has to be gathered before anything is lodged.

Where an argument has to be made, the firm prepares a written submission that sets the client's own account and the client's own evidence against the criteria the decision maker must apply. The applicant's personal statement is the applicant's evidence. It is reviewed and corrected by them before it is filed, and the client decides which claims are advanced and what material goes to the Department. The firm's role is to make sure the account is complete, consistent and expressed in the language the Regulations use, and to say plainly where the law does not allow what the client is hoping for.

After lodgement the firm holds the file. That means receiving the Department's correspondence as the appointed representative, answering requests made under section 56 and invitations to comment under section 57 within the period allowed, advising on bridging visa and travel questions as they arise, and preparing the second stage application when the time comes.

Anyone who wants a partner visa matter assessed before it is lodged, or a refusal reviewed, can request a consultation online. The request form asks for the detail needed to work out what the matter involves, and the firm replies by email. More about how the firm works, and who acts on its matters, appears on the about page.