Partner Visa Relationship During Imprisonment

A partner visa imprisonment problem arises when one partner in a couple applying for an Australian partner visa is in prison, on remand or serving a custodial sentence. A partner visa imprisonment matter is not automatically a refused application. The Department of Home Affairs must still decide whether the couple have a genuine and continuing relationship, and a period in custody does not by itself mean the relationship has ended.

Couples facing a partner visa imprisonment situation usually ask the same three questions. Can the relationship still qualify while one of us is inside? What evidence counts when we cannot live together or share bills in the usual way? And does the conviction itself stop the visa? This guide answers each question. It covers both scenarios: where the visa applicant is the person in custody, and where the Australian partner who is the sponsor is the person in custody.

The focus of this article is the relationship and how to prove it during a period of imprisonment. Character and sponsorship limitations are explained in outline, with links to more detailed guidance, because in a partner visa imprisonment case they must be handled alongside the relationship evidence, not instead of it. For an overview of every partner visa subclass, read our complete guide to partner visas in Australia.

Can a partner visa survive imprisonment?

Yes, a partner visa application can survive imprisonment, provided the relationship remains genuine and continuing and the separation caused by custody is temporary rather than permanent. The Migration Act 1958 does not say that a couple must live under the same roof every day. It says that the couple must live together, or must not live separately and apart on a permanent basis.

That wording is the legal foundation of every partner visa imprisonment application. For married couples it appears in paragraph 5F(2)(d) of the Act. For de facto couples it appears in paragraph 5CB(2)(c). A prison sentence separates a couple physically, but it is usually not a separation either partner chose, and it usually has an end date. Where the couple remain committed to each other and plan to live together on release, the separation can be temporary in the legal sense.

The real risk in a partner visa imprisonment matter is not the separation itself. The risk is that the evidence does not show the relationship continuing through it. A couple who stay in close contact, support each other financially and practically, and plan their life after release are in a very different position from a couple whose contact fades during a long sentence. The Department will look at what actually happened during the period of custody.

There is a second risk. The offence that led to imprisonment may raise character issues for the applicant, or sponsorship issues for the Australian partner. These are separate legal tests. A genuine relationship does not cure a character problem, and a character problem does not make a genuine relationship less genuine. Both must be dealt with. Our page on partner visa lawyers explains how My Migration Lawyers approaches applications that involve more than one legal issue, and our article on partner visa lawyers in Australia explains what that work involves.

What counts as imprisonment for partner visa purposes?

For migration law purposes, imprisonment usually means criminal detention, which regulation 1.09 of the Migration Regulations 1994 defines as serving a term of imprisonment (including periodic detention) following conviction for an offence, or being in prison on remand. The same regulation says a person is not in criminal detention if they are subject to a community service order, on parole after serving part of a term of imprisonment, or on bail awaiting trial.

This definition is useful in a partner visa imprisonment matter because it shows the range of situations that may arise. A partner may be:

• on remand, held in custody before trial or sentence, with no conviction yet recorded;
• serving a sentence of imprisonment after conviction;
• serving periodic detention or a form of custodial order that is served in part;
• released on parole, living in the community under conditions; or
• on bail, living in the community while charges are decided.

Each situation affects the relationship evidence differently. A partner on remand may be released within weeks or held for a long time. A partner on parole may be living at home again but subject to conditions about address, travel and contact. A partner on bail may have conditions that restrict where they live. Where the applicant is on a bridging visa while charges are decided, our guide to Bridging Visa A conditions explains the usual conditions. The way the relationship is described in the application must match the actual custody and release history, because the Department can obtain court and corrections records and will compare them with what the couple say.

Immigration detention is different from criminal detention. A person held in immigration detention under the Migration Act is not serving a criminal sentence. Immigration detention raises its own rules about making visa applications, which are explained later in this guide. In this article, a partner visa imprisonment case means criminal custody unless we say otherwise.

The two partner visa imprisonment scenarios

There are two quite different partner visa imprisonment scenarios, and the legal issues depend on which partner is in custody. Many couples assume the issues are the same either way. They are not.

Scenario one: the visa applicant is in custody

Where the person applying for the visa is in prison, three sets of issues arise together. The first is the relationship: can the couple show it is genuine and continuing despite the separation? The second is character: the applicant must meet the character requirements, and a conviction with a custodial sentence will usually require close attention. The third is practical: the applicant may need to complete health examinations, biometrics and forms while in custody, and the applicant's current visa status may change because of the conviction.

For an onshore applicant, the applicant's existing visa may be at risk of cancellation. Our complete guide to the Subclass 820 partner visa explains the onshore criteria that still apply. A cancelled visa affects whether and how a Subclass 820 partner visa application can be made. For an offshore applicant who is imprisoned overseas, the questions are often about police certificates, the foreign conviction and the timing of release. The Subclass 309 partner visa requires the applicant to be outside Australia when applying and when the provisional visa is granted.

Scenario two: the Australian partner is in custody

Where the sponsoring partner is in prison, the applicant's own character may be unaffected. The issues are the relationship evidence and the sponsorship. The sponsor must still be an Australian citizen, Australian permanent resident or eligible New Zealand citizen, and must still sponsor the applicant. The sponsor's criminal history may engage the sponsorship limitations in regulations 1.20KC and 1.20KD, which are explained later in this guide.

A sponsor in custody also faces practical limits. The sponsor needs to give sponsorship information and declarations, provide identity documents and, if asked, provide police checks and consent to disclosure of relevant convictions. Arrangements in custody take time. In a partner visa imprisonment case where the sponsor is inside, the applicant often carries most of the practical work, and the evidence of the relationship tends to come from the applicant's side: visits made, money deposited, letters sent and household responsibilities carried alone.

Does time in prison mean you are living apart for a partner visa?

No, time in prison does not by itself mean a couple are living separately and apart on a permanent basis. Physical separation is not the test. The test is whether the separation is permanent, and that depends on the couple's intentions and conduct, not only on where each of them sleeps.

The Department's own policy guidance on spouse relationships says that physical separation for work or other reasons does not necessarily mean the parties have legally separated. It also says that where a couple claim a separation is temporary, the decision maker considers the reasons for the separation and whether they are consistent with a mutual commitment to each other. An involuntary separation caused by custody fits that framework. The reason is clear and documented, and it is not a choice by either partner to end the relationship.

For de facto couples, the Department's guidance refers to the decision of the Full Court of the Federal Court in SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69. Following that decision, a delegate cannot find that a de facto couple fail paragraph 5CB(2)(c) solely because they were not living together when the application was made, or when it is decided. In a partner visa imprisonment matter, this matters a great deal. The fact that one partner is in custody on the day of lodgement, or on the day of decision, is not on its own a reason for refusal.

For married couples, the Department's guidance says the onus is on the applicant to show that the separation is temporary and that the couple will, at some point in the future, live together. There is no timeframe within which the couple must live together, and each case is considered on its facts. A couple in a partner visa imprisonment situation should therefore be ready to show:

• the reason for the separation, supported by court and corrections documents;
• that the separation was not a decision to end the relationship;
• the expected release date, or the stage the criminal proceedings have reached;
• that contact and mutual support have continued during custody; and
• concrete plans to live together after release, such as a shared address nominated for parole.

A long sentence does not prevent a temporary separation, but it makes the evidence more important. The longer the period of custody, the more closely the Department may examine whether the couple's commitment has survived it.

How imprisonment affects the four aspects of the relationship

The Department must consider all the circumstances of the relationship, including four matters set out in regulation 1.09A(3) for de facto partners and regulation 1.15A(3) for spouses. These four matters are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons' commitment to each other. In a partner visa imprisonment case, each aspect looks different from an ordinary application, and the evidence must be adapted to what is realistically possible.

Financial aspects during imprisonment

The financial aspects look at joint ownership of property, joint liabilities, pooling of resources and the extent to which the partners rely on each other financially. During imprisonment, the partner in custody usually has little or no income. The partner outside often pays the rent or mortgage alone, keeps up loan repayments and pays money into the prisoner's account so the partner in custody can buy phone credit and other items.

That pattern is itself evidence of financial interdependence. A one-way flow of support from the partner outside to the partner inside shows reliance and commitment. Joint accounts may stay open but show little activity. Accounts may be frozen, or one partner may have taken over the household finances under a power of attorney. In LAM (Migration) [2021] AATA 2517, a Subclass 820 remittal, the reported issues included the financial aspects of the relationship where the sponsor's assets and accounts were frozen because of imprisonment and parole for financial offences. The point for any partner visa imprisonment application is that the financial picture should be explained, not left for the Department to guess at.

Nature of the household during imprisonment

The nature of the household looks at living arrangements and how responsibility for the household and any children is shared. During custody the couple do not share a household day to day. The evidence then focuses on the household the couple maintained before custody, how the partner outside kept that household running, and the household they intend to resume.

Where there are children, care arrangements are often central. In Pham (Migration) [2018] AATA 3667, a Subclass 820 remittal involving a spouse of the sponsor, the reported issues included the sponsor's incarceration, the applicant's financial support and care for the sponsor's children. A partner who cares for the other partner's children during a sentence provides strong evidence of a shared household that continues, even though one parent is absent.

Social aspects during imprisonment

The social aspects look at whether the couple present themselves to others as a couple and are known as a couple. Imprisonment can strain social relationships. Some family and friends withdraw. Others become closer. The evidence in a partner visa imprisonment matter often includes Form 888 statements from people who know the couple well and who know about the custody, together with evidence that the partner outside is recognised as the prisoner's partner by the prison, the court, lawyers and family.

Being registered as an approved visitor, being named as next of kin, and being the person the prisoner nominates for contact are all forms of social recognition. They show that institutions, not just friends, treat the couple as partners.

Nature of the commitment during imprisonment

The nature of the commitment looks at the duration of the relationship, the couple's knowledge of each other, their intention that the relationship be long term, and how they have supported each other. This is often the strongest aspect in a partner visa imprisonment case, because staying in a relationship through a custodial sentence is a demanding form of commitment.

The evidence should show what that commitment looked like in practice: regular visits despite distance and cost, letters and calls over months or years, attendance at court, support for rehabilitation, and plans for life after release. Our guide on partner visa evidence and how to prove your relationship is genuine explains the four aspects generally, and our article on preparing evidence of a genuine relationship shows how evidence is organised.

Evidence of a continuing relationship while one partner is in prison

The best evidence in a partner visa imprisonment matter is evidence created during the period of custody that shows the relationship continuing in real time. Documents prepared after the event to describe the relationship are useful, but records made at the time carry more weight because they were not created for the visa.

Most of this evidence is held by the couple, by the prison or corrective services authority, or by the court. Corrective services systems differ between states and territories, and the records available, and how to request them, vary. The couple should gather what genuinely exists and explain any gaps. Our partner visa document checklist lists ordinary relationship documents. The categories below are specific to a partner visa imprisonment application.

Prison visit records

Records of visits are often the single most persuasive document in a partner visa imprisonment case. They show dates, frequency and the visitor's relationship to the prisoner. Visit records may come from the correctional centre, from the visitor's own booking confirmations or from the approved visitor registration. Where visits were by video because of distance or restrictions, the booking records are relevant in the same way.

Frequency matters, but so does explanation. A partner who lives a long way from the correctional centre, works full time or cares for children may not visit every week. The application should say why the pattern of visits is what it is.

Phone calls, video calls and messages

Prisoners can usually only call numbers that are approved in advance. A partner's number on the approved list, and records of calls to it, show regular contact that both the prisoner and the institution recognised. Phone credit purchases, video visit bookings and approved email or message services, where they exist, are also useful.

Calls in custody are often short and costly. A record of frequent short calls over a long period can show more commitment than a few long ones.

Letters and cards

Letters written during custody are contemporaneous evidence of the nature of the commitment. They show how the couple speak to each other, what they plan, how they deal with hardship and what they know about each other's lives. The application does not need every letter. A representative selection across the whole period, with dates visible, is usually more useful than a large unsorted bundle. Private content can be selected carefully, because the purpose is to show continuity, not to expose every intimate detail.

Money and practical support

Deposits into the prisoner's trust or spending account, payment of legal fees, payment of fines, and payments of the prisoner's debts or household bills all show financial support. So does keeping a lease or mortgage in place for the couple's home while one partner is inside. Bank statements that show these payments, with a short explanation of what each recurring payment is, fit naturally within the financial aspects of the relationship.

Court, sentencing and parole documents

Court documents can be strong evidence in a partner visa imprisonment application. Sentencing remarks sometimes refer to the offender's partner and family support as a factor in rehabilitation. Pre-sentence or psychological reports may describe the relationship. A partner may have written a reference to the court or attended hearings. Parole applications and parole orders often name the address where the person will live on release, and the person they will live with.

These documents were created for a different legal process, by people with no interest in the visa outcome. That independence is what makes them valuable. They can also contain information that is unhelpful, so they must be read carefully before being relied on. Where a document raises a character issue, the issue should be dealt with openly, not avoided.

Form 888 statements

Form 888 statements from Australian citizens or permanent residents who know the couple are part of the social aspects evidence. In a partner visa imprisonment case, the most useful Form 888 statements come from people who know about the custody and can describe how the couple have maintained their relationship during it. A Form 888 is a supporting statement, not a statutory declaration. Our guides on who can make a Form 888 and what it should say and on Form 888 example answers and common mistakes explain how these statements work.

Every witness must write in their own words about what they have personally seen. Copied wording across several Form 888 statements weakens all of them.

For an onshore applicant, our 820 partner visa evidence checklist sets out the general evidence categories that sit alongside the custody-specific evidence above.

The relationship statement in a partner visa imprisonment case

In a partner visa imprisonment case there is still one relationship statement, and it is the couple's own account of their relationship from how they met to the present. It must cover the period of custody honestly. The four aspects of the relationship are areas the Department examines, not separate statements, and the single relationship statement should address each of them.

The relationship statement should explain, in plain language:

• how and when the couple met, and how the relationship developed before custody;
• when and why custody began, without trying to argue the criminal case again;
• how the couple kept in contact and supported each other during custody;
• how the household and finances were managed while one partner was inside;
• who knows about the relationship and the custody, and how family and friends responded; and
• the couple's plans for when custody ends, including where they will live.

Couples in a partner visa imprisonment situation sometimes want to leave the custody out, or to describe it vaguely. That is a serious mistake. The Department will usually learn of a conviction through police certificates, the character questions in the application or Form 80, and a statement that does not mention it will look evasive. A clear, factual account is more credible.

The statement remains the client's own evidence. Where a lawyer assists, the lawyer reviews the draft with the client, asks questions where the account is unclear or incomplete, and the client corrects and confirms it. Our guide to the partner visa relationship statement explains what a statement should cover in any partner visa case.

When to lodge: timing in a partner visa imprisonment application

Timing in a partner visa imprisonment application depends on which partner is in custody, where the applicant is, and how long the couple have been together. There is no single correct time, but there are several ways to get it wrong.

Where the applicant must be

For an onshore Subclass 820 and Subclass 801 application, the applicant must be in Australia when the application is made. For an offshore Subclass 309 and Subclass 100 application, the applicant must be outside Australia when the application is made and when the Subclass 309 is granted. A partner visa imprisonment case does not change these location rules. An applicant who is in custody in Australia is in Australia. An applicant who is imprisoned overseas is outside Australia. Our guide to the Subclass 820 onshore partner visa explains the onshore criteria.

The applicant's visa status at lodgement

An onshore applicant's visa status at the time of application matters. If the applicant still holds a substantive visa, the Schedule 3 criteria do not apply. If the applicant's visa has expired, or has been cancelled because of the offence, the applicant may be unlawful or hold only a bridging visa. The Schedule 3 criteria, numbered 3001, 3003 and 3004, may then apply unless there are compelling reasons for not applying them. Our articles on Schedule 3 criteria when you are unlawful and on the Schedule 3 waiver explain how those criteria operate.

Where an applicant's visa was cancelled on character grounds, further statutory bars may prevent an onshore application altogether. That is a question to check before anything else is done, because it can decide which pathway is available. The visa cancellations page explains how cancellation works.

The de facto 12-month requirement

A de facto couple must generally show that their de facto relationship existed for at least 12 months immediately before the application, unless the relationship is registered under a law of an Australian state or territory, or compelling and compassionate circumstances exist. In a partner visa imprisonment case, a period of custody inside those 12 months is not automatically excluded, because the question is whether the de facto relationship existed, and a de facto relationship can continue through a temporary separation. The evidence must show that it did. Our articles on the de facto partner visa and the 12-month rule and on whether you really need 12 months of de facto relationship for a Subclass 820 explain the rule and its exceptions.

Lodging during custody or after release

Some couples lodge while one partner is still in custody. Others wait until release. Lodging during custody may be necessary where the applicant's visa situation requires it, or where waiting would cause other problems. Waiting until release may allow the couple to show they have resumed living together, which is strong evidence that the separation was temporary.

There is no rule that a partner visa imprisonment application must wait for release. The decision should be made after looking at the whole picture: visa status, character, sponsorship, the expected release date and the strength of the relationship evidence. Where there is urgency, our article on urgent immigration lawyer advice explains what to prepare.

Practical steps while one partner is inside

Partner visa applications and sponsorships are made online through ImmiAccount. A partner in custody cannot usually use ImmiAccount directly. Planning is needed for identity documents, signatures, health examinations, biometrics and any requested forms. Both partners must still provide their own information and declarations. A lawyer can be appointed to act using Form 956, so that correspondence from the Department reaches someone who can respond on time. Our guide on how to create an ImmiAccount explains the online account.

Relationships that began while one partner was in custody

A relationship that began while one partner was already in custody can be a genuine relationship, but it will be examined closely. The couple may have met through correspondence, through a mutual friend, or knew each other before the custody without being in a relationship.

The difficulty is that the couple may never have lived together. For de facto couples, the SZOXP decision means that never having lived together is not, by itself, a reason to find that the couple fail paragraph 5CB(2)(c). But a de facto couple must still meet the 12-month requirement or an exception, and must show a mutual commitment to a shared life. For married couples, the Department's policy guidance says an applicant cannot meet the living together element if they have never lived with their spouse or cannot show an intention to live together in the future, so the intention to live together becomes critical.

A partner visa imprisonment application built on a relationship formed in custody needs particularly careful evidence of how the relationship developed, how well the couple know each other, and what their concrete plans are. It also needs an honest account of how the couple met. A decision maker may ask whether the relationship was formed for a migration purpose. The best answer is a full and consistent account, supported by records made at the time.

Imprisonment after lodgement or between the two stages

A partner may be taken into custody after a partner visa application has been lodged, or after the Subclass 820 or Subclass 309 has been granted but before the permanent Subclass 801 or Subclass 100 is decided. A partner visa imprisonment issue at this stage must be managed carefully.

First, the Department must be told about relevant changes in circumstances. A change of address, a change in living arrangements and new criminal charges or convictions are all matters that may need to be notified using Form 1022. Failing to notify can create a separate integrity problem.

Second, the relationship is assessed again at the permanent stage. The couple must show the relationship is still genuine and continuing, and that any separation is temporary. Our article on Subclass 820 vs Subclass 801 explains the two stages, and our guide to Subclass 820 processing times explains why the permanent stage is often some time after lodgement.

Third, if the applicant is the person charged or convicted, the applicant's temporary visa may itself be at risk of cancellation on character grounds. That is the most serious form of a partner visa imprisonment problem, because it can affect the applicant's right to remain in Australia while the permanent visa is decided.

Finally, if the relationship ends during custody, the position changes completely. Our article on what happens if the relationship breaks down during a Subclass 820 application explains the consequences. Where the relationship ended because of family violence committed by the sponsor, the family violence provisions may allow the applicant to continue to the permanent visa if the relevant criteria are met.

Character requirements when the applicant has been in prison

Where the visa applicant has served time in prison, the applicant must still meet the character requirements, and a partner visa imprisonment case cannot be decided on the relationship alone. Every partner visa requires the applicant to satisfy public interest criterion 4001, which is met only if the applicant passes the character test in section 501 of the Migration Act 1958, or the decision maker decides not to refuse the visa despite the applicant failing it.

Under subsection 501(6), a person does not pass the character test if they have a substantial criminal record. Subsection 501(7) says a person has a substantial criminal record if, among other things, they have been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment that total 12 months or more. The sentence imposed is what counts, not the time actually served, and concurrent sentences and suspended sentences are treated in particular ways. A shorter sentence does not end the inquiry either, because the character test has other limbs, such as past and present criminal or general conduct.

Failing the character test does not mean the visa must be refused. It means the decision maker has a discretion to refuse it. In exercising that discretion, a delegate must take into account the Ministerial direction made under section 499 of the Act that is in force at the time. The current direction requires the decision maker to weigh considerations that include the protection of the Australian community, the strength, nature and duration of the person's ties to Australia and the best interests of minor children in Australia.

This is where the relationship evidence and the character response meet. In a partner visa imprisonment matter, the Australian partner is usually the strongest tie the applicant has to Australia. The same evidence that proves a genuine and continuing relationship also shows the depth of that tie: years of visits, support through a sentence, a shared home waiting on release and children who depend on both parents. Evidence of rehabilitation, such as completed rehabilitation courses, employment plans and the views of treating professionals, sits alongside it.

The detail of the section 501 process, the notice of intention to consider refusal and how to respond to it are beyond this article. The point for a partner visa imprisonment application is that character cannot be left for the Department to raise. It should be identified before lodgement and prepared for. The visa cancellations page explains how My Migration Lawyers acts in character matters, and our guide to Form 80 personal particulars explains why the criminal history answers must be complete and consistent with court records.

Police certificates and criminal history evidence

Police certificates are evidence in every partner visa application, and in a partner visa imprisonment case they will show the conviction. The applicant should not try to avoid that. The better course is to obtain the certificates early, check that they match the court records, and explain the history openly in the application.

Missing or expired police certificates are a common and avoidable reason for refusal. Reported Tribunal decisions include many partner visa cases sent back to the Department after the applicant supplied the required police certificates on review. For example, in Lou (Migration) [2019] AATA 4665, a Subclass 820 matter, the reported issue was public interest criterion 4001 where an authorised criminal clearance certificate had not been given to the delegate and a Canadian police certificate was then provided to the Tribunal. A partner visa imprisonment application should never fail on paperwork that could have been obtained in time.

Sponsor limitations when the Australian partner has a criminal record

Where the Australian partner is in prison or has served a sentence, the sponsorship itself may be at risk, separately from the relationship. Regulation 1.20KC of the Migration Regulations 1994 requires the Minister to refuse to approve the sponsorship for a Subclass 820, Subclass 309 or Subclass 300 visa if the sponsor has been convicted of a relevant offence and has a significant criminal record, unless it is reasonable to approve the sponsorship.

Regulation 1.20KD defines a significant criminal record for this purpose. In general terms, it covers a sentence of imprisonment of 12 months or more, or two or more terms that together total 12 months or more, for a relevant offence. The Department's policy guidance says a suspended sentence counts as a sentence of imprisonment for this purpose, because it is the sentence that matters, not the time served. A conviction for an offence that is not a relevant offence does not engage this rule.

In deciding whether it is reasonable to approve the sponsorship, the decision maker must have regard to matters that include the length of time since the sponsor completed the sentence, the best interests of any children of the sponsor or the applicant, and the length of the relationship between the sponsor and the applicant. In a partner visa imprisonment matter where the sponsor is still serving a sentence, the first of those matters may weigh against approval for now, and the timing of lodgement deserves careful thought.

Tribunal decisions show how these matters are weighed. In Naureen (Migration) [2024] ARTA 468, a Subclass 309 remittal, the reported issues were whether it was reasonable to approve the sponsorship, the sponsor's significant criminal record, the time that had passed since the sponsor's last imprisonment and the limited time the couple had spent together because of travel restrictions. In Ellis (Migration) [2024] AATA 3411, a Subclass 820 remittal, the reported issues were sponsorship approval where the sponsor had been convicted of a relevant offence and had a significant criminal record, and whether it was reasonable to approve it. These decisions were not handled by My Migration Lawyers and turn on their own facts.

The sponsor must also consent to the disclosure of relevant convictions to the applicant, and must provide police checks when asked. Our sponsorship limitations service page and our article on when a sponsor cannot sponsor a partner visa explain these limits in more detail. This article does not repeat that analysis, because in a partner visa imprisonment case the sponsorship question and the relationship question must each be answered on their own evidence.

Immigration detention and partner visa applications

Immigration detention is not imprisonment, but couples often meet both in the same matter, because a person whose visa is cancelled after a conviction may be taken into immigration detention on release from prison. A partner visa imprisonment issue can therefore become an immigration detention issue on the day the sentence ends.

A person in immigration detention faces strict statutory limits on making visa applications, and some visas cannot be applied for at all from detention after a short window has passed. Whether a partner visa can be made, and how, depends on the person's visa history, any cancellation decision and the time limits that apply. These questions should be checked before the release date, not after it.

The relationship evidence remains just as important in immigration detention. Visit records from the detention centre, call records and continued financial support all show a relationship continuing through another involuntary separation. In Law (Migration) [2023] AATA 3587, a Subclass 309 remittal, the reported issues included a genuine and continuing relationship and a valid marriage despite the applicant's periods as an unlawful non-citizen, immigration detention, a previous visa application and an extended period living in different countries. Our guide to bridging visas in Australia explains the bridging visa types that may become relevant on release.

When the applicant is imprisoned overseas

Where the applicant is in prison outside Australia, a partner visa imprisonment case usually involves a Subclass 309 application and a foreign criminal process. The same relationship principles apply: the separation must be temporary, and the relationship must continue through it.

The practical issues are different. Contact may be harder to document, because foreign prisons keep different records and may not allow regular calls. The Australian partner may be able to visit only rarely, at significant cost. Money transfers to the prison, or to a lawyer or family member for the prisoner's needs, become central evidence. Translations of foreign court documents and sentencing records will usually be required.

Character questions also look different. A foreign conviction is assessed under the same character test, and the decision maker may ask whether the foreign process was fair and how the offence compares to Australian law. Police certificates from the country of imprisonment must be obtained. In a partner visa imprisonment matter with an overseas conviction, the timing of release, the travel document and the place where the applicant will live after release all affect when the application can realistically be made. Our page on the Subclass 300 prospective marriage visa is relevant where the couple are not yet married and plan to marry in Australia.

Responding to Department requests in a partner visa imprisonment case

The Department will often ask for more information in a partner visa imprisonment case, and the response may decide the application. A request under section 56 asks for further information or documents. Our guide to responding to a section 56 request explains how to do it properly.

Where the Department holds adverse information that may be the reason, or part of the reason, for refusal, it may invite comment under section 57. In a partner visa imprisonment matter, adverse information may come from police, courts, corrections or a third party who has told the Department something about the relationship. Our guide to the section 57 natural justice letter explains how to respond. Each response should deal with every point raised, attach the evidence that answers it and stay consistent with what the couple said earlier.

Deadlines in these letters are short. Where one partner is in custody, the couple should arrange in advance how documents will be signed and passed to the person who is responding, so that a deadline is not missed because a letter could not reach the prison in time.

If a partner visa is refused after imprisonment

A refusal in a partner visa imprisonment case is not always the end, but the time to act is short and strictly applied. The right course depends on why the visa was refused: the relationship, the character test, the sponsorship or another criterion.

Most partner visa refusals by a delegate can be reviewed by the Administrative Review Tribunal, which decides the matter afresh on the evidence before it at the time of its decision. That means updated relationship evidence, including what has happened since release, can be put before the Tribunal. Our articles on partner visa refused appeal options and on what to expect in an ART review explain the process. The partner visa refusals and visa refusals service pages explain how My Migration Lawyers acts after a refusal.

Character decisions follow different review rules from ordinary refusals. Some are reviewable by the Tribunal under special time limits, and some are not reviewable on the merits at all, leaving only judicial review in a court for legal error. The review pathway should be confirmed from the decision record immediately. Our guide on why partner visas get refused and our article on the most common reasons for Subclass 820 refusals explain the patterns we see. Where a fresh application may be possible instead of review, our article on applying for a partner visa after a visa refusal explains the bars that can apply. A visa appeal lawyer can confirm which pathway is open.

Common mistakes in partner visa imprisonment applications

The most common mistakes in a partner visa imprisonment application are avoidable. They usually come from treating the custody as something to hide or minimise, rather than something to explain and prove through.

• Leaving the custody out of the relationship statement, or describing it vaguely, when it will appear in police certificates and the character questions.
• Lodging without visit records, call records and money transfer records, so the period of custody looks like a gap in the relationship.
• Treating the character test and the sponsorship limitations as the same issue, or ignoring one of them.
• Assuming a sponsor's conviction makes sponsorship impossible, without checking whether it is a relevant offence and a significant criminal record, and whether approval is reasonable.
• Failing to notify the Department of a change of address, a new charge or a conviction during processing.
• Missing a response deadline because nobody arranged how documents would reach the partner in custody.
• Using Form 888 statements that are copied from each other, or that do not mention the custody at all.

Each of these mistakes can turn a strong partner visa imprisonment case into a refusal. The partner visa lawyer guide and our article on when you need an immigration lawyer for a partner visa explain where professional advice helps in preparing a difficult application.

How My Migration Lawyers helps with partner visa imprisonment matters

My Migration Lawyers acts for couples in partner visa imprisonment matters where one partner is in custody, on remand, on parole or recently released, and where the relationship must be proved through a period apart. These are complex cases, because the relationship, character and sponsorship questions arise together and each must be answered on its own evidence. The firm acts in many matters of this exact type and is well placed to handle them with care and discretion.

In a partner visa imprisonment matter, the work usually includes:

• reviewing the court, sentencing, corrections and parole documents before anything is lodged, to identify every character and sponsorship issue early;
• confirming the correct pathway and timing, including the applicant's location, visa status, Schedule 3 and any bar on applying;
• identifying the visit, call, letter and financial records that exist and how to obtain them, and organising them across the four aspects of the relationship;
• reviewing the couple's single relationship statement with them so that it covers the period of custody clearly and accurately in their own words;
• preparing submissions on character and, where needed, on whether it is reasonable to approve the sponsorship;
• managing correspondence with the Department, including section 56 and section 57 responses, so that deadlines are met while one partner is inside; and
• advising on review options if a decision goes the wrong way.

Weiwei Zhang, Principal Lawyer, leads the firm's partner visa practice. You can read about Weiwei Zhang and about My Migration Lawyers. The firm acts for couples Australia wide by video consultation, including clients of our partner visa lawyers in Sydney, Melbourne, Brisbane, Perth, Adelaide, Canberra, Hobart, the Gold Coast and Parramatta. If you have already lodged, our article on hiring an immigration lawyer after lodgement explains how the firm can step in, and our guide to booking an immigration lawyer consultation explains what to bring.

If you or your partner is in custody and you want to protect your partner visa, a partner visa imprisonment issue is best addressed before the Department raises it. Book a consultation with My Migration Lawyers, or call 1300 040 300.