Partner Visa Mental Health Conditions

A partner visa mental health question arises when the applicant, or a family member included in the application, has a diagnosed mental health condition. Many couples worry that a condition such as depression, anxiety, bipolar disorder or schizophrenia will end the application. In most cases it will not. A partner visa mental health assessment is a legal and medical process with clear rules, and the condition is assessed on medical evidence, not on stigma.

This guide explains how a partner visa mental health issue is handled at each stage. It covers the health requirement in Public Interest Criterion 4007, the role of the Medical Officer of the Commonwealth, the health examinations, what must be disclosed, the medical evidence that helps, and the health waiver that is available for partner visas. It also explains how a mental health condition can affect the relationship evidence, interviews and other parts of a partner visa where compelling circumstances matter.

The article applies to the onshore Subclass 820 partner visa and the permanent Subclass 801 that follows it, the offshore Subclass 309 partner visa and the permanent Subclass 100, and the Subclass 300 Prospective Marriage visa. For the full framework of the partner visa, including sponsorship and the two stages, see the firm's complete guide to partner visas in Australia. This article is narrower. It deals only with the partner visa mental health issues that the Department of Home Affairs and the Tribunal see in practice.

Can you get a partner visa with a mental health condition?

Yes. A person with a mental health condition can be granted a partner visa. The law does not exclude anyone because of a diagnosis. The question is whether the applicant meets the health requirement in Public Interest Criterion 4007, and if not, whether the health requirement should be waived.

Every partner visa applicant must meet the health requirement, whatever their health. A partner visa mental health condition is assessed in the same way as any other health condition. A Medical Officer of the Commonwealth looks at the condition, its likely course, and the health care and community services the person is likely to need. Many people with well managed conditions meet the health requirement without difficulty.

Where a condition is more serious, the partner visa mental health assessment becomes more detailed. The Medical Officer may ask for specialist reports, treatment history and information about how the person functions day to day. If the Medical Officer finds that the requirement is not met, a partner visa applicant still has an important advantage. Partner visas use Public Interest Criterion 4007, which allows a health waiver. Many other visas do not.

That is why a partner visa mental health case should never be treated as hopeless. It should be treated as a matter that needs accurate evidence and, where necessary, a well prepared waiver submission. The firm's Partner Visa Lawyers page explains the firm's wider partner visa work, and the partner visa lawyer guide explains when legal advice adds value.

Which health requirement applies to partner visas: PIC 4007

Partner visas use Public Interest Criterion 4007 in Schedule 4 to the Migration Regulations 1994. This applies to the Subclass 820, Subclass 801, Subclass 309, Subclass 100 and Subclass 300 visas.

The Department's own policy for each of these visas lists PIC 4007 among the public interest criteria the primary applicant must satisfy. For the Subclass 820, the requirement is in clause 820.223. For the Subclass 309, it is in clause 309.225. For the Subclass 801, it is in subclause 801.223(1). For the Subclass 100, it is in clause 100.222. For the Subclass 300, it is in clause 300.223. The firm's Subclass 820 partner visa guide and its 820 visa requirements guide explain the other criteria for the onshore visa.

The difference between PIC 4005 and PIC 4007

Public Interest Criterion 4005 and Public Interest Criterion 4007 contain the same basic health tests. The key difference is the waiver. PIC 4005 has no waiver, so a person who does not meet it cannot be granted the visa, whatever their personal circumstances. PIC 4007 contains a waiver, so the decision maker can look at the wider circumstances of the case.

This difference matters greatly in a partner visa mental health matter. A person who might fail a visa with PIC 4005 can still be granted a partner visa if the waiver is exercised in their favour. The Department of Home Affairs' published review of the migration health requirement confirms that under PIC 4007 a health waiver is available for the decision maker to consider, while under PIC 4005 the decision maker cannot consider the applicant's personal circumstances.

Who must meet the health requirement

The primary applicant must meet PIC 4007. Every member of the family unit who is also an applicant must meet it too. This is the "one fails, all fail" rule. For the Subclass 820, it is in subclause 820.224(1). For the Subclass 309, it is in subclause 309.228(1).

Members of the family unit who are not applicants must also meet PIC 4007, unless the decision maker is satisfied that it would be unreasonable to require them to undergo the assessment. For the Subclass 820, this is paragraph 820.224(1A)(b). For the Subclass 309, it is subclause 309.228(2). This rule matters in a partner visa mental health case where a child or other dependant has a condition but is not migrating. It is discussed in more detail later in this article.

In practice, this means a partner visa mental health issue may concern the applicant, an included child or a non-migrating family member. Each situation is handled differently, and the right approach depends on who has the condition. The firm's guide to the onshore partner visa explains how family members are included in an application.

What the health requirement actually tests

The health requirement tests three things: whether the person is free from tuberculosis, whether the person has a disease or condition that is a threat to public health or a danger to the Australian community, and whether the person has a disease or condition likely to result in significant health care and community service costs or prejudice the access of Australians to health care or community services.

For almost all partner visa mental health cases, only the third limb is relevant. A mental health condition is not a public health risk in the sense that an infectious disease is. The real question is cost and access.

The public health limb

The first two limbs deal with tuberculosis and other diseases or conditions that are a threat to public health or a danger to the Australian community. These limbs are not usually engaged by a mental health condition. Applicants should not assume that a psychiatric diagnosis is treated as a danger to the community. It is not treated that way simply because of the diagnosis.

The significant cost limb

The Department's published guidance says that estimated health and community costs for a condition are assessed for the period of stay for temporary visas. For permanent visas, they are assessed over a set period of years, and for conditions that are permanent, over a longer period up to a maximum. The Department sets a significant cost threshold, which changes from time to time. This article does not state a figure because the figure changes.

For a partner visa mental health assessment, the cost estimate usually turns on the treatment the person is likely to need. That can include specialist psychiatric care, medication, community mental health services, hospital admissions, and in some cases disability or support services. A condition that is stable on routine medication will usually be estimated very differently from a condition that has required repeated hospital admissions.

Note that the provisional partner visas, the Subclass 820 and the Subclass 309, lead to permanent residence. The Medical Officer's assessment for a partner visa mental health case therefore usually looks ahead in the way it would for a permanent visa. The firm's Subclass 820 vs Subclass 801 guide explains the two stages.

The prejudice to access limb

The Department's guidance describes this limb as asking whether a condition is likely to prevent Australian citizens or permanent residents accessing health care or community services in short supply. The services currently identified as being in short supply are organ transplants and dialysis. Mental health services are not on that list. In a partner visa mental health matter, the cost limb is usually the one that matters.

Private health insurance and personal funds

The Department's guidance states that the Medical Officer cannot consider whether having private health insurance or enough money to pay for treatment will affect the person's use of public services. Only the medical situation is assessed. This surprises many couples. A sponsor's offer to pay for treatment does not change the Medical Officer's assessment. It may, however, be relevant later in a partner visa mental health waiver, which is discussed later in this guide.

The Medical Officer of the Commonwealth and the binding opinion

A Medical Officer of the Commonwealth is a doctor appointed by the Department who assesses whether a visa applicant meets the health requirement. The decision maker must accept the Medical Officer's opinion on the medical question.

Regulation 2.25A of the Migration Regulations 1994 deals with referral to Medical Officers of the Commonwealth. Under that regulation, the decision maker is to take the opinion of the Medical Officer on the health matter to be correct for the purpose of deciding the application. In a partner visa mental health case, that means the delegate cannot simply disagree with the Medical Officer about the condition or its likely cost. The delegate also cannot substitute a different medical view from a treating doctor.

This does not mean the opinion is beyond question. The Medical Officer's opinion must address the right legal question and must be based on the evidence before them. If the treating specialist provides important evidence the Medical Officer did not have, a further opinion can be sought. At the Tribunal, it is common for further evidence to be sent back to a Medical Officer for a fresh opinion.

The Tribunal decision 1923768 (Migration) [2020] AATA 3910 shows why this matters. It was a Subclass 309 matter that the Tribunal remitted. The issues recorded for that decision were that the applicant had failed to meet the health criteria, that the requirements in PIC 4007 were not met, that a further Medical Officer of the Commonwealth opinion was provided, and that the visa applicant then satisfied the health criteria.

A second decision, 2005509 (Migration) [2024] AATA 759, was also a Subclass 309 matter that the Tribunal remitted. The issues recorded were health criteria, mild functional and cognitive impairment, mild developmental delay, and the Medical Officer of the Commonwealth opinion. Each case turns on its own medical evidence. These decisions show that a partner visa mental health refusal on health grounds can be re-examined when the right evidence is placed before the decision maker.

The Department's panel instructions also make clear that the panel doctor who examines the applicant does not decide whether the health requirement is met. That role belongs to the Medical Officer, who assesses the case on all the health information submitted.

Partner visa health examinations: what happens

Partner visa applicants are asked to complete immigration health examinations with a doctor approved by the Department. In Australia, the examinations are arranged with the Department's migration medical services provider, Bupa Medical Visa Services. Outside Australia, they are done by an approved panel physician or clinic.

The Department issues a HAP ID, which is an identifier used to book and record the examinations. The results are sent to the Department electronically through eMedical. The Department's guidance says health examination results are generally valid for 12 months from completion. The firm's partner visa document checklist explains where health examinations fit in the overall application, and the firm's ImmiAccount guide explains how to access the request letters.

What the examination covers

The panel instructions published by the Department include an assessment heading for brain and cognition, covering mental and cognitive status and intellectual ability. The examining doctor records the applicant's medical history and findings. Where a significant condition is identified, the case may be referred to a Medical Officer for further assessment, and specialist reports may be requested.

In a partner visa mental health case, it is sensible to bring existing medical records to the examination. These can include a letter from the treating psychiatrist or general practitioner, a list of current medication, and any recent hospital discharge summaries. Bringing accurate records helps the examining doctor record the condition correctly and can reduce later requests for information.

Requests for further information

The Medical Officer may ask for more information or further examinations. A request for a specialist report in a partner visa mental health matter is common. It is not a sign of refusal. It means the Medical Officer needs more evidence to estimate the likely course and cost of the condition.

These requests have a deadline. The deadline is short and strictly applied. Late or incomplete responses can lead to a decision on the information already held, which is rarely in the applicant's interest. The firm's guide to the Subclass 820 evidence checklist explains the wider evidence the Department expects, and the guide to Subclass 820 processing times explains why health requests can affect timing.

When health examinations are requested

The Department usually asks for health examinations after the application is lodged. Some applicants arrange examinations earlier. In a partner visa mental health case, the timing can matter, because a recent hospital admission or a change in medication may be recorded at the examination. If the condition is currently unstable, it is worth getting advice before the examination so that up to date treating evidence is ready. The firm's article on how long the onshore partner visa takes explains the stages of processing.

Do you have to disclose a mental health condition in a partner visa application?

Yes. A partner visa applicant must answer the health questions in the application and at the health examination truthfully and completely, and that includes disclosing a mental health condition. Hiding a condition does not make it disappear, and it can create a far more serious problem than the condition itself.

The partner visa application asks about the health of the applicant and of family members. The examining doctor also asks about medical history. Answers must be accurate. If the applicant is not sure how to describe a condition, the safest course is to describe the diagnosis and treatment as the treating doctor has recorded them. The firm's Form 80 guide explains the general approach to accurate personal declarations.

Why non-disclosure is dangerous

Partner visas also carry Public Interest Criterion 4020, the integrity criterion. It deals with false or misleading information and bogus documents. A partner visa mental health condition that is concealed and later discovered can raise a PIC 4020 concern, which is a separate and much harder problem than the health requirement. PIC 4020 can also carry an exclusion period after refusal.

The Department's policy for the permanent stage also says that a repeat health examination may be requested where the delegate has reason to believe that the applicant failed to disclose a health condition at the provisional stage. A partner visa mental health issue that was hidden at the first stage can therefore come back at the second stage.

What disclosure looks like in practice

Disclosure does not require an essay. It requires accurate answers and, where useful, a short and factual description of the condition, the treatment and the current position, supported by a treating doctor's letter. In a partner visa mental health case, the firm usually recommends that the treating evidence is gathered early, so that it is ready when the Department asks.

Changes after lodgement

Under section 104 of the Migration Act 1958, an applicant must tell the Department about certain changes in circumstances after lodgement, including changes that make an answer in the application incorrect. The firm's guide to Form 1022 change of circumstances explains how this is done. Where a partner visa mental health condition changes significantly, for example through a new diagnosis, advice should be obtained about whether a notification is needed.

What evidence helps a partner visa mental health assessment

The most useful evidence in a partner visa mental health assessment is a detailed report from the treating specialist that addresses the diagnosis, history, current treatment, stability, functioning, prognosis and the services the person is likely to need. General letters saying the person is "well" are rarely enough.

The Medical Officer is estimating the likely course of the condition and the cost of the services the person will use. A good report answers those questions directly. It should be written by the doctor who knows the patient best, usually a psychiatrist, and it should be based on the doctor's own records.

What a treating specialist report should address

A useful report in a partner visa mental health case usually covers:

• the diagnosis and when it was made;
• the history of the condition, including any hospital admissions and when they occurred;
• current treatment, including medication, dose and how often the person sees the doctor;
• how long the person has been stable on current treatment;
• how the person functions day to day, including work, study, household tasks and relationships;
• the prognosis, and the reasons for it;
• the services the person is likely to need in the future, and how often; and
• whether the person has needed, or is likely to need, community or disability support.

The report should be factual and honest. It should not overstate recovery. Medical Officers read many reports. A report that is balanced, specific and consistent with the medical records carries more weight than one that reads as advocacy.

Treatment records and history

Supporting records help the Medical Officer test the report. These can include hospital discharge summaries, the general practitioner's records, prescriptions, and records from community mental health services. Where the applicant has lived in more than one country, records from each treating provider may help show the full history.

Functioning and work evidence

Evidence that the person works, studies, cares for others or volunteers can help show stable functioning. Employer letters, payslips, enrolment records and similar documents support a partner visa mental health assessment by showing how the person manages in daily life. The firm's guide on preparing evidence of a genuine relationship explains how employment and household evidence is used in a partner visa generally.

Translations and certified copies

Medical records in a language other than English should be translated. The translated record should be complete, including dates and medication names. A partial translation can create confusion about the history. The firm's partner visa lawyer versus doing it yourself article explains the practical risks of incomplete document preparation.

The partner visa health waiver: how it works

The partner visa health waiver allows the decision maker to grant the visa even though the applicant does not meet the cost and access limb of the health requirement. Under PIC 4007, the waiver may be exercised where the decision maker is satisfied that granting the visa would be unlikely to result in undue cost to the Australian community or undue prejudice to the access of Australian citizens or permanent residents to health care or community services.

The waiver is the most important feature of a partner visa mental health case. It is the reason a partner visa applicant whose condition is likely to involve significant cost can still be granted the visa. The Department's review of the health requirement describes the waiver test as whether granting the visa would be unlikely to result in undue cost to the Australian community or prejudice the access of Australians to health or community care.

What the waiver does not cover

The waiver applies to the cost and access part of the health requirement. It is not generally available for the parts of the health requirement that deal with tuberculosis and threats to public health. In a partner visa mental health matter, this limit is rarely a problem, because the issue is almost always cost.

How the waiver is raised

When the Medical Officer finds that the health requirement is not met, the Department usually writes to the applicant. The letter typically sets out the Medical Officer's findings and invites the applicant to provide information relevant to the waiver. The deadline to respond is short and strictly applied. This is the point at which a partner visa mental health case is often won or lost.

The firm's guides to responding to a section 56 request for more information and to the section 57 natural justice letter for a partner visa explain how these letters work. The waiver response should be treated with the same care as any response to adverse information.

What "undue" means in practice

The word "undue" is important. The waiver does not require the applicant to show there will be no cost. It asks whether the cost or prejudice to access is undue, having regard to the circumstances. That allows the decision maker to weigh the cost estimate against the reasons the visa should be granted. A partner visa mental health waiver is therefore a balancing exercise, not a mechanical calculation.

Compassionate circumstances and the Australian partner

In a partner visa mental health case, the strongest circumstances usually involve the Australian partner and any Australian children. Matters often raised include:

• the length and depth of the relationship and the couple's shared life in Australia;
• the Australian partner's ties to Australia, including work, family and community;
• the effect on the Australian partner if the couple had to live apart or leave Australia;
• the best interests of any Australian children of the relationship;
• the support available within the family, which may reduce reliance on public services;
• the applicant's work, skills and contribution to the community; and
• whether the applicant could obtain adequate treatment and support in another country.

These matters are presented with evidence, not just statements. A partner visa mental health waiver submission that is supported by Form 888 statements, school letters, employment records and medical evidence will usually carry more weight than one that relies on assertion. The firm's guides to Form 888 statements and Form 888 example answers explain how supporting statements are prepared.

Reducing cost to the community

Although the Medical Officer cannot consider private insurance or personal funds when assessing the health requirement, the wider circumstances, including steps that may reduce the cost to the community, may be relevant to whether the cost is undue. Evidence of private health cover, family support, employment and treatment plans may therefore be put forward in a partner visa mental health waiver. How much weight these matters carry depends on the case.

Writing a partner visa mental health waiver submission

A partner visa health waiver submission is a structured legal submission that responds to the Medical Officer's findings and sets out, with evidence, why the cost or prejudice to access would not be undue. It is not a personal letter asking for sympathy.

A well prepared submission in a partner visa mental health case usually has four parts. First, it identifies exactly what the Medical Officer found, including the condition and the services relied on in the cost estimate. Second, it addresses any medical evidence that was missing or has changed, so that a further opinion can be sought if appropriate. Third, it sets out the circumstances relevant to the waiver, supported by documents. Fourth, it explains why, weighing everything, the cost would not be undue.

Checking the Medical Officer's findings

The first step is to understand the findings. In some partner visa mental health cases, the Medical Officer has relied on an older hospital admission without later evidence of recovery and stability. In others, the estimate assumes services the applicant does not use. Where that is the case, new treating evidence may support a request for a further Medical Officer opinion. That is a separate step from the waiver, and it can come first.

Evidence for the waiver

The supporting evidence for a partner visa mental health waiver often includes the relationship evidence already lodged, supporting statements from the couple and from family, evidence about any children, employment and financial records, and treating evidence about the condition and its management. The firm's guide to partner visa relationship evidence explains the evidence that supports the genuineness of the relationship, which is often central to the waiver.

The tone of the submission

A partner visa mental health submission should be respectful, factual and precise. It should not minimise the condition. It should not argue that the Medical Officer was wrong unless there is a medical basis for that. It should explain the human and practical reasons the visa should be granted, and tie each reason to evidence. The firm's article on why partner visas get refused explains other issues that can arise at the same time and should be addressed together.

When to get help

Many couples lodge their own partner visa and only seek help when the Department raises the health requirement. That is a sensible time to get advice. The firm's article on hiring an immigration lawyer after lodging your own application explains how a lawyer can step in mid-application, and the guide to Form 956 and Form 956A explains how a representative is appointed. A second opinion from an immigration lawyer can also help where an earlier response has already been sent.

Family members included in the application or not migrating

Where a child or other family member has a mental health condition, the health requirement can apply to them even if the primary applicant is well. Members of the family unit who are applicants must meet PIC 4007. Members of the family unit who are not applicants must also meet it, unless the decision maker is satisfied that it would be unreasonable to require them to undergo the assessment.

This is one of the less understood parts of a partner visa mental health matter. A parent may assume that because a child is not migrating, the child's health is irrelevant. That is not always correct. A non-migrating dependent family member can be required to undergo health examinations, and the outcome can affect the primary applicant.

The Evangelio decision

Evangelio (Migration) [2022] AATA 1109 was a Subclass 820 matter that the Tribunal remitted. The issues recorded for that decision were that the health criteria were not met, that the medical opinion was validly made, and that non-migrating sons did not satisfy PIC 4007(1)(c). The decision illustrates that the health of non-migrating family members can be directly relevant to a partner visa.

When it may be unreasonable to require an assessment

Whether it is unreasonable to require a non-migrating family member to undergo a health assessment depends on the facts. Relevant matters can include whether the family member is genuinely a member of the family unit, where they live, their age, and practical barriers to examination. In a partner visa mental health case involving a non-migrating family member, this question should be considered early, before examinations are arranged.

Children of the relationship

Where a child is included in the application and has a condition, the same health assessment and waiver process applies. The best interests of the child, and the fact that the child's parent or step parent is an Australian citizen or permanent resident, are often central to the waiver. The firm's guide to the de facto partner visa explains how family members are treated in the de facto pathway.

Bridging visas while the health assessment continues

Onshore applicants usually hold a bridging visa while the Subclass 820 is processed. A partner visa mental health assessment can take longer than an ordinary assessment because of specialist reports and further opinions. The firm's guides to Bridging visa A and work rights while waiting for a Subclass 820 explain what the applicant can do in the meantime.

Can a mental health condition affect the relationship assessment?

Yes, but only in the sense that the condition may explain parts of the couple's life that the Department would otherwise question. A mental health condition is not evidence that a relationship is not genuine. The relationship is assessed under the same rules as any other, considering the financial aspects, the nature of the household, the social aspects and the nature of the commitment.

In a partner visa mental health case, the condition can shape how the couple live. One partner may have been in hospital for a period. The couple may have lived apart for a time during treatment. One partner may manage most of the finances or the household. Social life may be smaller. Each of these facts can look like a weakness in relationship evidence if it is not explained. Each can be a sign of commitment once it is explained properly.

Explaining the condition in the relationship statement

There is one relationship statement in a partner visa. Where the condition has shaped the relationship, the statement can explain this in the client's own words. It does not need to give clinical detail. It should explain how the couple have supported each other, how they have managed treatment, and how the relationship has continued through difficult periods. The firm's guide to the partner visa relationship statement explains how the statement is structured.

The relationship statement is the client's own evidence. The firm reviews it with the client for completeness and consistency, and the client corrects it and confirms that it is accurate. In a partner visa mental health matter, it is especially important that dates of hospital admissions, periods apart and changes in living arrangements match the medical records exactly.

Care and support as evidence of commitment

Where one partner cares for the other, that care can be strong evidence of the nature of the commitment. Attending appointments together, managing medication, arranging support, and making decisions together about treatment are all part of a shared life. Supporting statements from family and friends who have seen this can help. The firm's guide on why Subclass 820 visas are refused explains how gaps in relationship evidence are usually treated.

Privacy and how much to disclose

Couples are often concerned about privacy. The health requirement and the relationship assessment are separate. The relationship evidence does not need to contain detailed medical information. Where a partner visa mental health condition explains an event in the relationship, a short factual explanation with a supporting document is usually enough. The detailed medical evidence belongs in the health assessment.

Capacity, interviews and giving evidence

A mental health condition does not by itself mean a person lacks capacity to enter a relationship or to make a visa application. Capacity is assessed on the facts, and most people with a mental health condition have full capacity to make decisions about their relationship and their visa.

In some cases, the Department or the Tribunal may need to be satisfied that a party understood and chose the relationship. This can arise where a condition affects cognition. The Tribunal decision 2103759 (Migration) [2024] AATA 3878 was a Subclass 309 matter that the Tribunal remitted. The issues recorded were that the parties were validly married and that the review applicant had the capacity to make decisions about the relationship. Where capacity may be questioned, treating evidence that addresses decision making can be important.

Partner visa mental health and Department interviews

The Department may interview the applicant, the sponsor or both. A person with anxiety or another condition may find an interview stressful, and stress can affect how answers are given. In a partner visa mental health case, it can be appropriate to tell the Department in advance about the condition and to provide treating evidence about how it may affect the person in an interview. Whether any adjustment is made is a matter for the Department.

Hearings at the Tribunal

At the Administrative Review Tribunal, the applicant and sponsor usually give oral evidence. Where a partner visa mental health condition may affect a person's ability to give evidence, the Tribunal can be told about it in advance, with medical evidence. The firm's guide to ART review after a visa is refused explains what happens at a hearing.

Consistency between partners

Inconsistent answers between partners are a common reason for concern in relationship interviews. Where a condition affects memory or concentration, that should be explained with evidence rather than left for the decision maker to interpret. A partner visa mental health explanation, given early and supported by a treating doctor, is far better than one given after an adverse finding.

Mental health as compelling circumstances elsewhere in a partner visa

A mental health condition can also be relevant to other parts of a partner visa where the law allows compelling or compassionate circumstances to be considered. The most common are the Schedule 3 criteria for onshore applicants without a substantive visa, the sponsorship limitation, and the waiver in PIC 4020.

These provisions have their own tests. A partner visa mental health condition does not automatically satisfy any of them. It is one circumstance that may be weighed with others, and it must be supported by evidence.

Schedule 3 and compelling reasons

An onshore applicant who does not hold a substantive visa when applying for the Subclass 820 may need to meet the Schedule 3 criteria, unless there are compelling reasons for not applying them. Serious health issues affecting the applicant or the Australian partner can form part of those compelling reasons. The firm's guides to Schedule 3 waivers for partner visas, the Schedule 3 partner visa waiver and the Schedule 3 criteria explain this area.

The sponsorship limitation

Regulation 1.20J limits how many partner sponsorships a person can have approved and imposes a five-year gap in certain cases. Regulation 1.20J(2) allows a sponsorship to be approved despite the limitation where there are compelling circumstances affecting the sponsor. The decision ZHANG (MIGRATION) [2024] ARTA 113 was a Subclass 820 matter that the Tribunal remitted. The issues recorded were the sponsorship limitation requirement, compelling circumstances, and significant mental and physical health issues. The firm's pages on partner visa sponsorship limitations and on when a sponsor cannot sponsor a partner explain the rule.

The PIC 4020 waiver

Where a PIC 4020 concern arises, the waiver allows the decision maker to consider compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The Department's policy lists significant health or welfare issues affecting the Australian person, including the absence of other carers, among the factors that may be considered. A sponsor's own mental health condition can therefore be relevant in that setting.

Family violence and relationship breakdown

Where a relationship ends because of family violence, the family violence provisions may allow the applicant to continue. Mental health evidence can be part of that evidence, but the provisions have their own rules about what evidence is accepted. The firm's family violence partner visa page and the guide to what happens if a Subclass 820 relationship breaks down explain the position.

The permanent stage: Subclass 801 and Subclass 100

At the permanent stage, applicants who received a health clearance or a health waiver for the provisional visa are not ordinarily asked to undergo further health examinations. The Department's policy for the Subclass 801 and the Subclass 100 states this directly.

The same policy lists the situations where repeat examinations may be requested. These include where the delegate has reason to believe the applicant failed to disclose a health condition at the provisional stage, where there are concerns about fraud, where the Department has information that the applicant's health condition has changed since the provisional visa was granted, and where the provisional visa ceased more than 12 months before the delegate began assessing the permanent visa.

For a partner visa mental health case, this has two practical consequences. First, a condition that was fully disclosed and assessed at the first stage is usually not reassessed at the second stage. Second, a condition that was not disclosed, or that has changed significantly, may be. A family member added at the permanent stage, such as a child born after the provisional visa was granted, will need health examinations at that stage.

The relationship must still be genuine and continuing at the permanent stage. Updated relationship evidence is usually requested. Where the partner visa mental health condition has affected the relationship since the first stage, for example through a hospital admission or a period apart, the updated evidence should explain it.

If the Department says you do not meet the health requirement

If the Medical Officer finds that the health requirement is not met, the Department will usually invite comment and waiver information before deciding. If the visa is then refused, the refusal can generally be reviewed by the Administrative Review Tribunal, where new medical evidence and new waiver evidence can be given.

At the Tribunal, the review is a fresh decision on the merits. The Tribunal is also bound to accept the Medical Officer's opinion on the medical question, but it can seek a further opinion when new evidence is provided, and it can consider the waiver for itself. The Tribunal decisions cited in this article show that partner visa mental health refusals can be remitted when the evidence changes. Each decision depends on its own facts, and no outcome can be assumed.

The deadline to apply for review is short and strictly applied. Advice should be obtained as soon as the refusal is received. The firm's guides to partner visa refusal appeal options, the visa appeal lawyer article and the partner visa after a visa refusal article explain the options. The firm's partner visa refusals and visa refusals and ART appeals pages explain the firm's review work.

Where the Tribunal affirms a refusal and there is an error of law, for example in the way the Medical Officer's opinion was obtained or relied on, judicial review may be available. Judicial review is limited to legal error and does not reconsider the medical merits.

How My Migration Lawyers helps with partner visa mental health matters

My Migration Lawyers acts for partner visa applicants and their Australian partners where a mental health condition affects the health requirement, the relationship evidence or another part of the application. The firm deals with complex partner visa matters, acts in many partner visa mental health matters involving health assessments and waivers, and is capable of handling them from lodgement through to review.

In a partner visa mental health case, the firm's work usually includes the following. The firm reviews the medical history and identifies who must meet PIC 4007, including non-migrating family members. It advises on accurate disclosure in the application and at the health examination. It explains to the treating specialist what the Medical Officer needs to see, so that the report addresses diagnosis, stability, functioning, prognosis and likely services. It analyses the Medical Officer's findings when they arrive, and where new evidence justifies it, asks for a further opinion. It prepares the health waiver submission, setting out the circumstances of the Australian partner and any children, and supporting each point with evidence. It reviews the relationship statement and supporting statements with the client so that periods of treatment, hospital admissions and time apart are explained consistently. Where the visa is refused, it represents the applicant at the Administrative Review Tribunal.

The firm's work is led by Weiwei Zhang, Principal Lawyer. More about the firm is on the About My Migration Lawyers page, and the firm's immigration lawyer for a partner visa article explains when legal help is most useful.

The firm acts for clients across Australia and overseas, with consultations by video. It acts for clients through its partner visa lawyers in Sydney, Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra, Hobart and Parramatta. Clients with wider migration issues can also see the firm's immigration lawyers in Sydney, Melbourne, Brisbane, Perth and Adelaide pages.

If the Department has raised a health issue, or you are preparing a partner visa and want to understand how a mental health condition will be assessed, the first step is a consultation. The firm's guide to booking an immigration lawyer consultation explains what to prepare, and the guide to urgent immigration lawyer advice explains what to do when a deadline is close. A partner visa mental health matter is best handled before the deadline, not after it.

Book a Consultation with My Migration Lawyers. You can also call 1300 040 300.