Partner Visa Refused: Your Appeal Options and What to Do Next

Can a partner visa refusal be appealed in Australia?

Yes. Most partner visa refusals can be reviewed by the Administrative Review Tribunal, and the period to apply is short and cannot be extended. A partner visa refusal is not the end of the matter, but it does start a clock that nobody can stop.

A refusal by the Department is not an appeal in the ordinary sense. The Tribunal conducts a merits review. It looks at the application again, on the law and on the evidence before it, and decides for itself whether the criteria for the visa are met. New evidence may be given. A decision that was correct on the material the Department had can still be set aside by the Tribunal on better material.

Not every refusal is reviewable. Section 338 of the Migration Act 1958 sets out what is a reviewable migration decision. Two categories matter for partner visas. The first is a refusal where the visa could be granted while the applicant is in the migration zone and the application was made in the migration zone. That covers a refused Subclass 820 partner visa. The second is a refusal where the visa could not be granted while the applicant is in Australia and a criterion for the visa required the applicant to be sponsored or nominated by an Australian citizen, a permanent visa holder, a New Zealand citizen who holds a special category visa, or a company or partnership operating in the migration zone. That covers a refused Subclass 309 partner visa and a refused Subclass 300 prospective marriage visa.

The refusal letter itself states whether a review right exists, which body the application goes to, and the date by which it must be made. That paragraph is the most important part of the document. Read it before reading the reasons.

Who can apply for review of a partner visa refusal?

It depends on where the applicant was when the visa application was made, and the answer is not always the applicant. Getting this wrong is the most expensive mistake available at this stage, because the period to apply runs out while the wrong person is preparing the wrong application.

Where a Subclass 820 partner visa is refused, the visa applicant is the review applicant. Section 347A requires that person to be physically present in the migration zone when the review application is made. An applicant who leaves Australia after the refusal, even briefly, cannot make a valid review application from overseas.

Where an offshore partner visa is refused, the position reverses. For a refusal of a Subclass 309 partner visa or a Subclass 300 prospective marriage visa, the only person who may apply for review is the sponsor or nominator named in the application. The visa applicant has no review right of their own. There is no requirement about where the sponsor is located. Couples routinely lose the review because the person overseas tried to lodge it.

There is a further trap at the permanent stage. Where a Subclass 100 partner visa is refused and the applicant is outside Australia when that decision is made, there is no merits review right at all. Section 347A requires the applicant to have been in the migration zone when the decision was made and to be in the migration zone when the review application is made. A Subclass 309 visa holder who travels and is refused the permanent visa while abroad has no application to make.

How long is the period to apply, and what happens if it is missed?

The period is set by section 347 of the Migration Act, it is short, and the Tribunal has no power to extend it. An application made after it ends is not properly made, and the Tribunal has no jurisdiction to consider it. There is a general power in the Administrative Review Tribunal Act 2024 to extend time for other kinds of review. It does not reach reviewable migration decisions.

The period runs from the day the applicant is notified of the decision. Notification is not the same as reading the email. Where the Department uses one of the methods of giving documents in section 494B, section 494C fixes the day on which the person is taken to have received the document, whether or not they actually did. An applicant who was travelling, who changed address, or whose former representative received the letter is still taken to have been notified. The clock runs from deemed receipt.

The prescribed application fee must also be paid within the same period. Paying late is the same as applying late. Where payment of the full fee would cause financial hardship, a reduced fee may be sought, and the request must be made inside the period along with the part of the fee that remains payable. The current amount is fixed by the Migration Regulations 1994 and rises each year, so the figure should be taken from the Tribunal at the time of lodging and not from any article.

Two practical points follow from all of this. The first is that the review application should be lodged early and the arguments developed afterwards. A valid application preserves the review right; a perfect application lodged a day late preserves nothing. The second is that a missed period cannot be repaired by explanation. Where the period has already ended, the remaining options are a further application, if one is available, or one of the paths described below, and advice from a partner visa lawyer should be taken immediately rather than after a further delay.

What the Tribunal can and cannot do with a partner visa refusal

The Tribunal cannot grant a partner visa. This is the single most misunderstood feature of the process, and it changes how the case should be run.

On review, the Tribunal may exercise all of the powers and discretions that were available to the Department. Under section 105 of the Administrative Review Tribunal Act 2024 it may affirm the decision, vary it, set it aside and substitute its own decision, or set it aside and remit the matter for reconsideration. For reviewable migration decisions the remittal power is confined. Section 349 of the Migration Act allows the Tribunal to remit the application to the Department only with the orders or recommendations permitted by the Migration Regulations, and regulation 4.15 sets out what those are. The order that matters in a partner visa case is an order that the applicant is taken to have satisfied a specified criterion.

In practice, that means a successful review of a refusal based on the relationship does not produce a visa. It produces a remittal to the Department with an order that the relationship criterion is taken to be satisfied, and the Department then decides the criteria it has not yet decided, which commonly include health and character. The case therefore has to be aimed at the specific criterion the delegate found was not met, not at the outcome in general.

The Tribunal is also not a court. It is not bound by the Department's view of the facts and it is not confined to the documents that were before the delegate. Where the Tribunal holds information that would be the reason, or part of the reason, for affirming the refusal, section 359A requires it to give the review applicant particulars of that information and invite comment on it. Section 357A states that the natural justice hearing rule is exhaustively stated in that Division. The review applicant is ordinarily invited to a hearing, and failing to appear at a Tribunal case event without a good reason can result in a decision being made without further notice.

Why partner visas are refused, and why the reason decides the strategy

Almost every partner visa refusal falls into one of a small number of categories, and the category determines whether review, a further application, or something else is the right response.

The most common is that the decision maker was not satisfied the relationship is genuine. The married relationship test is in section 5F of the Migration Act and the de facto partner test is in section 5CB, with the prescribed matters in the Migration Regulations. These provisions require the decision maker to consider 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. A refusal on this ground is usually not a finding that the couple lied. It is a finding that the material lodged did not address those four matters, or that the couple's own accounts did not match. That is the kind of refusal a merits review is built for, because the deficiency is evidentiary and evidence can be added.

Other refusals turn on a criterion rather than on the evidence. An onshore applicant who did not hold a substantive visa when the application was made faces the Schedule 3 criteria. An applicant who gave a bogus document or information that is false or misleading in a material particular faces Public Interest Criterion 4020, which carries a three year bar on a further visa for bogus documents or false or misleading information, and a ten year bar where the applicant failed to satisfy the decision maker as to identity. The two periods are different and are routinely confused. Criterion 4020 may be waived where there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The applicant's own interests are not relevant to the waiver.

A refusal may also have nothing to do with the applicant. The sponsorship limitations in regulation 1.20J limit a sponsor to two approved partner sponsorships, and prevent a further sponsorship until five years after the first visa application was made. A sponsor who was themselves sponsored as a partner is subject to the same five year period. The limitation may be waived under regulation 1.20J(2) where there are compelling circumstances affecting the sponsor. Where the refusal rests on the sponsorship limitations rather than the relationship, the argument on review is about the sponsor's circumstances, and the evidence required is different again.

Where the relationship has ended, the position depends on the stage. An applicant for the permanent Subclass 801 partner visa or the permanent Subclass 100 partner visa whose relationship ceased because of family violence committed by the sponsoring partner may rely on the family violence provisions in Division 1.5 of the Migration Regulations. At the temporary stage the provisions are much narrower, and the time of application family violence provisions for the Subclass 820 partner visa are available only to current or former Subclass 300 prospective marriage visa holders who married their sponsor. The purpose of the provisions is to avoid a person feeling compelled to remain in a violent relationship in order to keep their eligibility for permanent residence.

Schedule 3 refusals, and the argument that is usually put too late

Schedule 3 is the most commonly mishandled partner visa refusal, and the reason is that the waiver argument is treated as something fixed at the date of application. It is not.

An applicant for a Subclass 820 partner visa who does not hold 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. Criterion 3001 imposes a time limit on making the application. Criteria 3003 and 3004 require, among other things, that the circumstances that led to the applicant becoming unlawful were beyond their control and that there are compelling reasons for granting the visa. The criteria do not make the application invalid. They mean the visa cannot be granted unless they are met or the waiver is exercised.

The Full Court of the Federal Court held in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 that compelling reasons are not confined to circumstances existing at the time of application. Circumstances arising at any time up to the decision must be considered. That single point decides many of these reviews, because the matters that make a case compelling, such as the birth of an Australian citizen child, often arise after lodgement.

Departmental policy is direct about what does not usually amount to compelling reasons. The existence of a genuine relationship, and the hardship of separation if the applicant had to leave Australia and apply offshore, are generally not enough on their own. Cases involving an Australian citizen child with a demonstrable link to the applicant are treated differently. A Schedule 3 case therefore needs to be built on the specific circumstances of the family, documented, and put with the relevant policy and authority identified.

What happens to a bridging visa after a partner visa refusal

A bridging visa held by an onshore partner visa applicant does not end on the day of the refusal, and it does not continue indefinitely. It ceases a short fixed period after the refusal decision, and the period is set by Schedule 2 to the Migration Regulations.

Making a valid review application changes the event that ends the bridging visa. Instead of running from the refusal, the same short period runs from the Tribunal's decision affirming the refusal, or from its determination that the review application was not validly made. The practical effect is that lawful status, and the work and study rights attached to the bridging visa, continue through the review. The mechanism is a substituted cessation event rather than an extension, which is why an invalid review application provides no protection at all.

Where the bridging visa ceases and nothing further is on foot, the person becomes an unlawful non-citizen. That status carries consequences well beyond the partner visa, including liability to detention and removal, and exclusion periods that affect later applications. Anyone whose bridging visa is approaching cessation should obtain advice before that date rather than after it.

Can a new partner visa be lodged instead of applying for review?

Sometimes, and section 48 of the Migration Act does not prevent it in the way most commentary suggests. Section 48 limits the classes of visa a person in the migration zone may apply for once a visa has been refused or cancelled since their last entry. The classes that remain available are prescribed by regulation 2.12 of the Migration Regulations, and they include Partner (Temporary) (Class UK), which contains the Subclass 820 partner visa, and Partner (Residence) (Class BS), which contains the Subclass 801 partner visa. A person affected by section 48 is therefore not barred from making a further onshore partner visa application.

Two qualifications matter. The first is that Schedule 1 to the Migration Regulations imposes additional requirements on an application made by a person to whom section 48 applies, including that the sponsorship and specified supporting documents be provided with the application rather than later. An application that does not comply is not valid, and an invalid application does nothing except consume time. The second is that a person who is unlawful or who holds only a bridging visa will face the Schedule 3 criteria again on the further application, so the underlying obstacle does not disappear.

The real question is not whether a further application is possible but whether it is better. A further application starts again at the back of the queue, attracts the full visa application charge a second time, and will be decided by a delegate who can see the earlier refusal. Review puts the same material before an independent decision maker who can take new evidence and who is not bound by the delegate's findings. Where the refusal turned on the quality of the relationship evidence, review is usually the stronger option. Where the refusal turned on a defect in the application itself, a fresh and properly prepared application may be. That assessment should be made on the refusal reasons, not on general preference, and it should be made inside the review period so that both options remain open.

If the Tribunal affirms the refusal: judicial review and ministerial intervention

Two paths remain after a Tribunal decision, and neither is a second merits review.

Judicial review is an application to the Federal Circuit and Family Court of Australia (Division 2) under section 476 of the Migration Act. The Court does not decide whether the visa should have been granted. It decides whether the Tribunal's decision was affected by jurisdictional error, which means an error of the kind that takes the decision outside the Tribunal's authority. Failing to consider a claim that was clearly raised, denying procedural fairness in the way the legislation requires, or misapplying the legal test can each amount to jurisdictional error. Disagreeing with the Tribunal's view of the evidence does not. Section 477 imposes a strict time limit, measured from the date of the migration decision, which the Court may extend only where it is satisfied that it is necessary to do so. Where the Court finds jurisdictional error it sets the decision aside and the matter returns to the Tribunal to be decided again according to law.

Ministerial intervention is different in kind. Section 351 of the Migration Act allows the Minister to substitute for a Tribunal decision another decision that is more favourable to the applicant, if the Minister thinks it is in the public interest to do so. The power only becomes available after the Tribunal has decided the matter, it cannot be compelled, and there is no review of a decision not to exercise it. A request is assessed against the Minister's published guidelines, and unique or exceptional circumstances are what those guidelines look for. It is a last avenue, not an alternative to doing the review properly.

How My Migration Lawyers acts on a partner visa refusal

A refusal is a document with a structure, and the work starts by taking it apart. My Migration Lawyers reads the decision record in full, identifies the precise criterion the delegate found was not satisfied, and separates the findings that are evidentiary from the findings that are legal. Those two kinds of finding call for different work, and a review prepared without that distinction tends to answer the wrong question at length.

The firm then confirms the review position before anything else: whether the decision is reviewable, who the review applicant is, the date the period ends on the Department's own notification provisions, and what has to be paid and lodged to make the application valid. Where a review right exists, the application is lodged first and the case is built afterwards.

Preparing the case means working with what the client actually has. The firm does not construct a version of events. It takes the client's own account, reviews it with them, corrects it against the documents, and presents it in the form the law requires, with the evidence organised against the matters the decision maker is bound to consider. The statement that goes to the Tribunal is the client's own evidence, read and approved by them. Where there is a choice about which claims are advanced, the client makes it on advice.

From there the firm prepares the written submissions, addresses any information the Tribunal puts to the review applicant, prepares the client and the sponsor for the hearing, and appears at the hearing. Where the refusal involved Schedule 3, Public Interest Criterion 4020, the sponsorship limitations or family violence, the submissions identify the provision, the test, and the authority and policy that apply to it, because those cases are decided on the provision and not on sympathy.

Partner visa refusals are led by Weiwei Zhang, Principal Lawyer at My Migration Lawyers. Consultations are held by video anywhere in Australia and overseas, which matters where the review applicant is a sponsor in Australia and the visa applicant is not. Anyone holding a partner visa refusal should request a consultation while the review period is still open, because the options narrow considerably once it closes.