Partner Visa Schedule 3 Refusal: ART Review

A partner visa Schedule 3 refusal happens when the Department of Home Affairs refuses an onshore partner visa because the applicant did not hold a substantive visa when they applied, and the case officer was not satisfied that compelling reasons existed to waive Schedule 3. A partner visa Schedule 3 refusal can generally be reviewed by the Administrative Review Tribunal (ART), and the Tribunal decides the compelling reasons question again for itself.

That second point is the one most people do not know. The Tribunal is not limited to the evidence the Department had. It decides on the evidence before it at the time of its own decision, so circumstances that have changed since lodgement, and evidence that was never put to the Department, can be considered. A refusal on Schedule 3 grounds is serious, but for a person who can still lodge a review in time, it is not the end of the matter.

This article is written for a person who is holding a refusal decision now. It explains how to read the decision record, which Schedule 3 criterion the officer relied on, what the ART can reconsider, how a stronger review case is prepared, and what happens after the Tribunal decides. For the firm's general refusal work, see our partner visa refusals page. For the waiver at the application stage, see our Schedule 3 waiver service page.

What is a partner visa Schedule 3 refusal?

A partner visa Schedule 3 refusal is a decision refusing the combined onshore Subclass 820 and Subclass 801 application because the applicant did not satisfy subparagraph 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994. That subparagraph applies to an applicant who did not hold a substantive visa at the time of application. It requires the applicant to satisfy Schedule 3 criteria 3001, 3003 and 3004, "unless the Minister is satisfied that there are compelling reasons for not applying those criteria".

In practice, most applicants who are caught by Schedule 3 cannot satisfy all three criteria. Their application succeeds or fails on compelling reasons. A partner visa Schedule 3 refusal therefore usually means one of two things. Either the officer was not satisfied that the circumstances put forward were compelling, or the officer did not accept that the evidence proved them.

A partner visa Schedule 3 refusal is about the applicant's immigration status when the application was lodged. It is not, by itself, a finding that the relationship is not genuine. Some decision records contain both findings. Others accept the relationship and refuse only on Schedule 3. Working out which kind of decision you have is the first step in any review. Our general article on why partner visas get refused explains the other refusal grounds that can appear alongside Schedule 3.

Why Schedule 3 applies to some onshore partner visa applicants

Schedule 3 applies to an onshore partner visa applicant who did not hold a substantive visa when the application was made. A substantive visa is any visa other than a bridging visa, a criminal justice visa or an enforcement visa. Visitor, student, working holiday, graduate and skilled visas are substantive visas. A Bridging Visa A, a Bridging Visa C and a Bridging Visa E are not.

Schedule 3 therefore applies to people who:

• lodged the partner visa application after their visa had expired, while they were unlawful;
• lodged while holding a Bridging Visa E, for example after an earlier refusal or while arranging to depart;
• lodged while holding a bridging visa linked to another application, after their last substantive visa had ended.

Schedule 3 does not apply to an applicant who held a substantive visa when the application was lodged, even if that visa expired shortly afterwards. This is why the timing of lodgement matters so much, and why many partner visa Schedule 3 refusal matters begin with an application lodged a short time too late. Our article on the Schedule 3 criteria when you are unlawful explains the rules at the application stage, and our guide to bridging visas in Australia explains why a bridging visa is not a substantive visa.

Schedule 3 is a criterion of the onshore Subclass 820 visa. It does not apply to the offshore Subclass 309 visa, which is lodged while the applicant is outside Australia.

Criterion 3001: the timing of the application

Criterion 3001 requires the application to be made within a short period after the applicant last held a substantive visa. An applicant who lodged within that period may satisfy criterion 3001. An applicant who lodged after it cannot. Criterion 3001 does not make the application invalid. The application can still be lodged, but the visa cannot be granted unless the Schedule 3 criteria are met or waived.

Criterion 3003: the legacy criterion

Criterion 3003 deals with people who became unlawful before 1 September 1994. It rarely matters today. It is still listed in subparagraph 820.211(2)(d)(ii), so a decision record will often recite it, but it is seldom the reason for a refusal.

Criterion 3004: the substantive test

Criterion 3004 applies to a person who ceased to hold a substantive visa, or who entered Australia unlawfully, on or after 1 September 1994. Among other things, it requires that:

• the reasons the applicant became unlawful were beyond their control;
• there are compelling reasons for granting the visa;
• the applicant substantially complied with the conditions of their last substantive visa and of any later bridging visa; and
• the applicant would have been entitled to the visa if they had applied immediately before becoming unlawful.

Every element must be met. An applicant who simply overstayed, or who stayed on after an earlier refusal without regularising their status, usually cannot satisfy criterion 3004. That is why the real question in most partner visa Schedule 3 refusal reviews is not whether the criteria were met, but whether there are compelling reasons for not applying them. Our article on the Schedule 3 partner visa waiver explains how that waiver is put at the application stage.

How to read the decision record in a partner visa Schedule 3 refusal

The decision record in a partner visa Schedule 3 refusal tells you which criterion the officer found was not met, what the officer accepted, what the officer rejected, and why. It is the foundation of the review. The record should be read in full, not only the final paragraph, and compared line by line with what was actually lodged.

Five questions shape the review strategy.

Which Schedule 3 criterion did the officer find was not met?

The decision record should state whether the officer found that criterion 3001, criterion 3004, or both, were not satisfied, and whether the officer then considered a waiver. Where the officer found that the applicant lodged within the criterion 3001 period but failed criterion 3004, the review may concentrate on the elements of criterion 3004 and on compelling reasons. Where neither criterion was met, the review turns almost entirely on compelling reasons.

Were compelling reasons considered at all?

Where an applicant has claimed compelling reasons, or they are apparent from the material, the decision record should show that the officer considered them. A record that recites criteria 3001, 3003 and 3004, finds them not met and stops there, without dealing with the circumstances the applicant put forward, deserves close attention. Even where compelling reasons were considered, the record should show which claimed reasons were weighed and why each was rejected. A reason that was raised but never addressed is often the starting point of the review submission.

Did the officer consider circumstances up to the date of decision?

Compelling reasons are assessed on all of the applicant's circumstances as known up to the time of decision, not only the circumstances at lodgement. The Full Federal Court confirmed this in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32. A child born after lodgement, a sponsor's later diagnosis, or a pregnancy that arose while the application was being processed can each be relevant. If the decision record looks only at the position on the day of application, that approach is inconsistent with Waensila, and it should be raised in the review.

Were the best interests of any children considered?

The best interests of children are a relevant consideration when compelling reasons are assessed. Where the couple has a child, particularly an Australian citizen child, or the applicant cares for the sponsor's children, the decision record should show that the officer identified those children and weighed their interests. A record that mentions a child only in passing, or not at all, is a weakness in the decision that the review can address with fresh evidence.

Is there also a finding that the relationship is not genuine?

Some refusal decisions find both that Schedule 3 was not met and that the officer was not satisfied the relationship is genuine and continuing. Where both findings appear, both must be answered on review. The relationship is assessed under section 5F of the Migration Act 1958 for spouses, or section 5CB for de facto partners, together with regulation 1.15A or regulation 1.09A. The four aspects 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. Our guide to partner visa relationship evidence explains each aspect, and our article on why Subclass 820 visas are refused explains how relationship findings are usually expressed.

Common misconceptions about a partner visa Schedule 3 refusal

Four misconceptions cause most of the avoidable damage after a partner visa Schedule 3 refusal. Each one leads people to take a step that narrows their options, or to miss a step that would have helped.

Is a genuine relationship enough to overcome a partner visa Schedule 3 refusal?

No. Department policy states that, as a general rule, a genuine relationship and the hardship of separation are not compelling reasons on their own, because every partner visa applicant has a relationship and every couple would suffer if separated. The relationship is the basis of the application. It is not, by itself, a reason to set Schedule 3 aside. A long-standing relationship can support other compelling reasons, and the Tribunal has weighed it in that way, but it rarely carries the case alone.

Can you simply lodge a new onshore partner visa application?

No, not in most cases. A person in Australia who holds no substantive visa and has had a visa refused since last entering Australia is affected by section 48 of the Migration Act 1958. The Partner class is available to a section 48 affected applicant, but Schedule 1 item 1124B(3)(e) adds validity requirements. One of them is that the applicant must not have been refused a partner visa since last entering Australia. After a partner visa Schedule 3 refusal, a second onshore partner application is therefore generally invalid. Our article on a partner visa after a visa refusal explains section 48 in detail.

Does the Tribunal only check whether the Department made a mistake?

No. The ART conducts merits review. It decides for itself whether the applicant meets the criteria, and whether compelling reasons exist, on the evidence before it at the time of its own decision. New evidence and new circumstances can be put to the Tribunal. A partner visa Schedule 3 refusal review is not limited to pointing out errors in the original decision, although identifying those errors is still useful.

Is leaving Australia and coming back a simple fix?

No. Leaving Australia ends a Bridging Visa E, can affect the review, and may expose the applicant to an exclusion period that affects future visas. The offshore Subclass 309 pathway is a real option for some couples, but it must be planned with advice, after the review options have been considered, and not chosen in a hurry in the days after a partner visa Schedule 3 refusal.

Where our partner visa Schedule 3 refusal clients are located

My Migration Lawyers acts for people facing a partner visa Schedule 3 refusal throughout Australia, and every consultation is conducted by video. Couples in New South Wales can read about our partner visa lawyers in Sydney and our partner visa lawyers in Parramatta. Couples in Victoria and Queensland can read about our partner visa lawyers in Melbourne, Brisbane and the Gold Coast. The firm also acts for couples through our partner visa lawyers in Perth, Adelaide, Canberra and Hobart. The Administrative Review Tribunal applies the same law wherever the couple lives, and the review deadline runs in the same way in every state and territory.

Can you appeal a partner visa Schedule 3 refusal?

Yes, a partner visa Schedule 3 refusal of an onshore Subclass 820 and Subclass 801 application is generally a reviewable migration decision, and the applicant can apply to the Administrative Review Tribunal for merits review. The refusal letter states whether the decision is reviewable, who may apply, and the time limit that applies.

For an onshore application, the applicant in Australia is the person who applies for review. The review application must be lodged with the ART in the approved way and within the time limit. An application that is not properly made does not give the Tribunal jurisdiction, so it cannot decide the review at all. Our visa refusals page explains how the firm acts in ART appeals generally, and our guide to partner visa refusal appeal options sets out the choices after any partner visa refusal.

The review deadline is short and strictly applied

The deadline to apply for ART review of a partner visa Schedule 3 refusal is short and strictly applied. It runs from the date the applicant is notified of the decision, and the date of notification can be earlier than the date the letter is opened or read. The deadline cannot be extended, and the Tribunal has no power to accept a late application. A shorter period applies to people in immigration detention.

The notification date and the deadline should be identified on the day the refusal arrives. If the letter was sent by email, the email itself should be kept, together with any attachments. Our guide to urgent immigration lawyer advice explains what to have ready for a first consultation when time is short.

Lodge the review first, then build the case

The review application can be lodged before the full case is ready. The ART application starts the review and preserves the applicant's position. Evidence, Form 888 statements, expert reports and the written submission can then be prepared and provided to the Tribunal before the hearing. Waiting to lodge until every document is in hand is a serious mistake, because the deadline does not move.

Our article on what to expect at an ART review after a visa refusal describes the general stages of the Tribunal process. This article concentrates on what is different when the refusal turned on Schedule 3.

What the ART can reconsider after a partner visa Schedule 3 refusal

The ART can reconsider every part of a partner visa Schedule 3 refusal, including whether compelling reasons exist, on all of the circumstances at the time of its own decision. It is not bound by the officer's view of the evidence, and it is not limited to the material the Department had.

Because of Waensila, circumstances that arose after the Department's decision, and even after the review application was lodged, can be compelling reasons. A child born during the review, a sponsor's new diagnosis, a pregnancy, or a change in a family member's care needs can all be put to the Tribunal. Evidence that existed earlier but was never provided to the Department can also be given on review.

The decisions the Tribunal can make

Under section 349(2) of the Migration Act 1958, the Tribunal can affirm the decision, vary it, set it aside and substitute a new decision, or remit the matter to the Department for reconsideration with directions or recommendations permitted by the regulations. For a visa application, regulation 4.15 permits a direction that the applicant is taken to satisfy a specified criterion.

In a partner visa Schedule 3 refusal review, the usual favourable outcome is a remittal with a direction that the applicant satisfies subparagraph 820.211(2)(d)(ii). The Department then reconsiders the application on the remaining criteria. The Tribunal must give a written statement of its decision and reasons under section 368, and must notify the applicant of the decision under section 368A.

When the Tribunal can dismiss the review

The Tribunal can dismiss a review application if the applicant fails to appear at a scheduled hearing after being properly notified, under section 99 of the Administrative Review Tribunal Act 2024. An applicant can also withdraw the review under section 95. Either outcome ends the review without a decision on the merits. Correspondence from the Tribunal must be read and answered promptly, and the hearing must be attended.

The relationship finding on review

Where the Department also found that the relationship was not genuine and continuing, the Tribunal will need to be satisfied about the relationship as well as Schedule 3. Where the Department refused only on Schedule 3, the review usually concentrates on compelling reasons, but the relationship evidence should still be current and consistent, because it supports the compelling reasons case. Our guides to preparing evidence of a genuine relationship and the 820 partner visa evidence checklist explain how that evidence is organised.

Compelling reasons the Tribunal has considered on review

The compelling reasons the Tribunal has considered in published decisions remitting partner visa Schedule 3 refusal matters include Australian citizen children of the relationship, a pregnant sponsor, the sponsor's serious illness or mental health and dependence on the applicant, care of the sponsor's children, family health issues and bereavement, financial hardship, long-standing relationships, travel restrictions, and the circumstances in which the applicant's visa lapsed. None of these is automatic. Each must be proved, and the Tribunal weighs them together with the applicant's immigration history.

The term "compelling reasons" is not defined in the Regulations. Each case is decided on its own facts. Department policy describes the waiver as intended for genuinely compelling circumstances. It is not meant to advantage people who failed to comply with visa conditions, manipulated their circumstances, or could readily leave and apply offshore. A partner visa Schedule 3 refusal review must meet those policy concerns directly, not ignore them.

Australian citizen children and their best interests

An Australian citizen child of the relationship is one of the most significant circumstances in a partner visa Schedule 3 refusal review. The best interests of the child are a relevant consideration, and the evidence should show the child's relationship with each parent, who provides daily care, and the effect on the child if the family were separated or forced to relocate.

Published Tribunal decisions show how this is weighed. Tran (Migration) [2023] AATA 3869 was a matter involving an Australian citizen child, and the Tribunal remitted it to the Department for reconsideration. Naidu (Migration) [2023] AATA 1830 came back to the Tribunal after a court remittal and involved a child and a long-standing relationship. The Tribunal again remitted the matter to the Department for reconsideration. Evidence usually includes birth certificates, school or childcare records, medical records, and statements about the parenting arrangements.

The sponsor's health and dependence on the applicant

A sponsor's serious illness, disability or mental health condition, and their dependence on the applicant for care, can be a compelling reason. The evidence must show the condition, its effect on daily life, the care the applicant provides, and why that care could not reasonably be provided by someone else if the applicant had to leave. Specialist reports and letters from treating doctors carry far more weight than general statements. A treating practitioner who explains the likely effect of separation on the sponsor's health gives the Tribunal something concrete to weigh.

Pregnancy and circumstances that arise after the refusal

A sponsor's pregnancy, or a pregnancy that has led to the birth of a child, can arise while the review is pending. Under Waensila, these circumstances are considered as they stand at the time of the Tribunal's decision. Medical evidence of the pregnancy, the expected date of birth, any complications, and the support the sponsor needs should be provided, and updated if the position changes before the hearing.

The circumstances in which the visa lapsed

How the applicant came to be without a substantive visa is always relevant. Department policy accepts that circumstances beyond the applicant's control that caused or prolonged their unlawfulness, such as severe illness or incapacity, can reasonably be compelling. Other examples can include an application that was invalid without the applicant's knowledge, or a representative's failure to lodge on time. Each explanation must be supported by documents, and it must be consistent with what the applicant has said in earlier applications.

A long period of unlawfulness with little effort to regularise status weighs against the applicant. That does not end the case, but it must be explained honestly, and the explanation must be supported by evidence where evidence exists.

Family health issues, bereavement, financial hardship and travel restrictions

Serious health issues in the family, a bereavement, financial hardship, and travel restrictions that made departure impractical have each been considered by the Tribunal. These circumstances rarely succeed alone. They are most persuasive when they are documented, when they explain the applicant's situation at a particular time, and when they combine with other circumstances to form a complete picture.

The length of the relationship

The length and depth of the relationship can support a partner visa Schedule 3 refusal review, particularly where the couple has been together for many years, has children, or shares property and finances. It is a supporting circumstance. It rarely succeeds alone, for the reasons given in Department policy.

What usually does not persuade the Tribunal

Some arguments are commonly found in waiver requests that do not succeed. Knowing them helps an applicant avoid repeating the weaknesses that led to the partner visa Schedule 3 refusal in the first place.

• Relying only on the relationship and on the hardship that separation would cause, without identifying anything that sets the case apart.
• Emotional statements that describe distress but give no dates, no specific facts and no supporting documents.
• An immigration history that is incomplete, or that differs from what the applicant said in earlier visa applications.
• Silence about a long period of unlawfulness, or about breaches of visa conditions, in the hope the Tribunal will not notice.
• Claims about the sponsor's health that are not supported by medical evidence from a treating practitioner.
• A submission that argues the criteria were met when the facts plainly show they were not, instead of addressing compelling reasons.

Each of these weaknesses can be corrected on review. The Tribunal decides on the evidence before it, so a better prepared case is a genuinely different case.

Preparing the review case after a partner visa Schedule 3 refusal

Preparing the review case after a partner visa Schedule 3 refusal means answering every reason the officer gave, proving each compelling reason with evidence, and presenting the applicant's history honestly. The work falls into five parts.

A complete and honest immigration history

The review case starts with an accurate chronology of every visa held, every application lodged, every refusal or cancellation, and every period without a visa. The chronology must match the Department's records and the applicant's earlier forms, including any Form 80. Where the history includes a cancellation, our visa cancellations page explains the separate issues that can arise.

Honesty is not optional. Public interest criterion 4020 allows a visa to be refused where false or misleading information, or a bogus document, has been given to the Department or the Tribunal, and it can lead to an exclusion period. A waiver is possible only in limited circumstances. An applicant who admits a past breach and explains it is in a far better position than one whose account is later shown to be wrong.

Evidence that proves each compelling reason

Every compelling reason needs its own evidence. A child needs a birth certificate and evidence of the parenting role. A health claim needs medical reports. A claim about circumstances beyond the applicant's control needs documents showing what happened and when. General letters that say a person is "a good person" or "very much in love" do not prove compelling reasons.

Form 888 statements and witness evidence

Form 888 statements from Australian citizens or permanent residents who know the couple can support the relationship and the circumstances relied on. They are most useful when they describe specific events the witness saw, such as care given to a sick sponsor or a child. Our guides to who can make a Form 888 and what it should say and to Form 888 example answers and common mistakes explain how these statements are prepared. Witnesses may also be asked to give oral evidence at the hearing.

The written submission to the Tribunal

The written submission sets out the immigration history, the legal framework in subparagraph 820.211(2)(d)(ii) and criteria 3001, 3003 and 3004, each compelling reason under its own heading with references to the evidence, and the orders sought. It must answer the officer's reasons directly and address the Department's policy concerns, including why the applicant did not leave Australia and how they complied with their visa conditions. The written submission is the document the Tribunal member reads first, so its structure matters.

Preparing for the hearing

Most partner visa Schedule 3 refusal reviews involve a hearing at which the applicant, and usually the sponsor, give evidence. An interpreter can be arranged. The Tribunal member will ask about the immigration history, the circumstances relied on, and often the relationship. Answers must be consistent with the partner visa relationship statement, the earlier applications and the documents. The Tribunal may also invite the applicant to comment on information it considers adverse. Preparation means both partners understand the issues, know their own documents, and can give clear, truthful answers.

Your bridging visa while a partner visa Schedule 3 refusal is on review

A person who held a bridging visa linked to the refused partner visa application generally continues to hold a bridging visa while a valid ART review application is pending. That is one of the most practical reasons to lodge the review on time. A review application that is late, or not properly made, does not keep the bridging visa in effect, and the applicant can become unlawful.

Most people who receive a partner visa Schedule 3 refusal were not holding a substantive visa when they applied, so they usually hold a Bridging Visa C or a Bridging Visa E rather than a Bridging Visa A. The conditions of that bridging visa continue to apply during the review. They should be checked on the grant notice and on VEVO, and complied with carefully, because compliance with bridging visa conditions is itself relevant to criterion 3004 and to compelling reasons.

Work rights during the review

A Bridging Visa E or Bridging Visa C may carry condition 8101, which prevents work. A further bridging visa without that condition can sometimes be sought by showing a compelling need to work, for example genuine financial hardship. Our article on work rights while a Subclass 820 visa is pending explains how work conditions operate, and our guide to the Bridging Visa A explains the position for applicants who held a substantive visa when they applied.

Do not leave Australia during the review

Leaving Australia while holding a Bridging Visa C or a Bridging Visa E ends that bridging visa, and the holder cannot use it to return. A Bridging Visa B, which allows travel, is generally available only to a person who holds a Bridging Visa A or an earlier Bridging Visa B. Departure can also affect the review and may lead to an exclusion period that affects future visas. Travel should not be arranged during a partner visa Schedule 3 refusal review without advice, even for a family emergency.

A partner visa Schedule 3 refusal where the relationship has since ended

A relationship that ends during the review does not remove Schedule 3. The applicant must still satisfy subparagraph 820.211(2)(d)(ii) or obtain a waiver, and must also fall within one of the exceptions that allow a Subclass 820 visa to be granted after the relationship has ended. Those exceptions are in clause 820.221. They apply where the sponsor has died, where the applicant or a dependent child has suffered family violence committed by the sponsor, or where the applicant has custody, joint custody or access to a child of the sponsor, or the sponsor has child maintenance obligations. In each case the relationship must have been genuine until it ended.

The end of the relationship must be notified under section 104 of the Migration Act 1958, usually on Form 1022. A review that continues on the basis that the couple are still together, when they are not, creates a serious integrity problem.

Published Tribunal decisions show that a partner visa Schedule 3 refusal can still be reviewed in these circumstances. Cuyos (Migration) [2024] AATA 675 involved a relationship that had ended and a Schedule 3 issue, and the Tribunal remitted it to the Department for reconsideration. 2218614 (Migration) [2025] ARTA 2933 also involved a relationship that had ended, with limited evidence available, and the Tribunal remitted it to the Department for reconsideration. Our article on what happens to a Subclass 820 application if the relationship breaks down explains the general position, and our page on the partner visa family violence provisions explains the evidence a family violence claim requires.

When a court has sent a partner visa Schedule 3 refusal back to the Tribunal

A partner visa Schedule 3 refusal can return to the Tribunal for a fresh decision when a court finds that an earlier Tribunal decision was affected by jurisdictional error and remits the matter. The Tribunal then decides the review again, and the compelling reasons question is considered afresh on the circumstances at the time of the new decision.

Several published Tribunal decisions follow this path. Fu (Migration) [2025] ARTA 669 came back to the Tribunal after a remittal by the Federal Circuit Court and turned on compelling reasons. 2216826 (Migration) [2023] AATA 1925 and Singh (Migration) [2022] AATA 2866 also came back after court remittals, the second involving a relationship that had ended. In each of them, the Tribunal remitted the matter to the Department for reconsideration. Naiyaga (Migration) [2024] AATA 2786 is a further partner visa review that the Tribunal remitted to the Department for reconsideration.

These decisions show two things. First, the time between the original refusal and the final decision can be long, and circumstances change during that time. Second, every new hearing is an opportunity to put current evidence before the Tribunal. A partner visa Schedule 3 refusal that is remitted by a court should be treated as a new review, with updated evidence, an updated submission and fresh preparation for the hearing. Our judicial review page explains how the firm acts in court proceedings.

What happens after the Tribunal remits a partner visa Schedule 3 refusal

After the Tribunal remits a partner visa Schedule 3 refusal with a direction that subparagraph 820.211(2)(d)(ii) is satisfied, the Department must reconsider the application on that basis and decide the criteria that remain. The Department cannot revisit the criterion covered by the direction. It can, however, refuse the application on another criterion that has not been met.

The criteria that usually remain to be assessed include:

• the genuine relationship requirements, if the Tribunal did not decide them;
• health requirements under public interest criterion 4007, including any health examinations;
• character requirements under section 501, including police certificates that may have expired during the review;
• the sponsorship, including any limitation under regulation 1.20J, explained on our partner visa sponsorship limitations page; and
• public interest criterion 4020 and the other public interest criteria.

The Department often sends a request for further information under section 56 at this stage, and it may send an invitation to comment on adverse information. Our guides to responding to a section 56 request and to the section 57 natural justice letter explain how each is answered. Any change in circumstances during the reconsideration must be reported on Form 1022.

The Subclass 820 grant and the move to Subclass 801

If the remaining criteria are met, the temporary Subclass 820 visa is granted, and the application later moves to the permanent Subclass 801 stage. Our Subclass 820 vs Subclass 801 guide explains the two stages, and our article on how long the onshore Subclass 820 takes explains the factors that affect timing. A remittal after a partner visa Schedule 3 refusal is therefore an important step, but it is not the final grant. The file must be managed carefully until the visa is decided.

Refusal or invalid application: which decision do you have?

A partner visa Schedule 3 refusal is a decision on a valid application. Some people who believe they have been refused were in fact told that their application was invalid. That is a different situation, and it has different consequences.

An application can be invalid where the applicant held a visa with condition 8503 (No Further Stay) that had not been waived, or where a section 48 affected applicant did not meet the extra validity requirements in Schedule 1 item 1124B(3)(e). An invalid application is not decided on its merits, does not attract a bridging visa, and generally cannot be taken to the ART as a refusal. Our article on condition 8503 and the Subclass 820 visa and our guide to moving from a tourist visa to a partner visa explain the validity rules. The letter should be read closely to confirm whether it is a partner visa Schedule 3 refusal with review rights, or a notice that no valid application was made.

What if the Tribunal affirms a partner visa Schedule 3 refusal?

If the Tribunal affirms a partner visa Schedule 3 refusal, the refusal stands, and the applicant has two main legal pathways to consider: judicial review, or leaving Australia so that the Australian partner can sponsor an offshore Subclass 309 application. Each pathway has strict requirements and should be assessed quickly.

Judicial review for jurisdictional error

Judicial review in the Federal Circuit and Family Court of Australia is not a second merits review. The court does not decide whether there are compelling reasons. It decides whether the Tribunal made a jurisdictional error, for example by misunderstanding the legal test, failing to consider a claim that was clearly put, ignoring circumstances up to the time of decision, or denying procedural fairness. Time limits apply and are strict. Our judicial review page and our article on when you need a visa appeal lawyer explain the process.

The offshore Subclass 309 pathway

Schedule 3 does not apply to the offshore Subclass 309 visa. For some couples, leaving Australia and having the Australian partner sponsor a Subclass 309 application is the realistic path once onshore options are exhausted. The applicant must be outside Australia when that application is lodged and when it is decided.

Departure must be planned. A person who leaves Australia after being unlawful, or after a refusal, may be subject to an exclusion period that affects future visas, and the timing and manner of departure can matter. Advice should be obtained before any travel is booked. Our guide to partner visas in Australia compares the onshore and offshore pathways. Ministerial intervention exists in limited circumstances, but it is discretionary and should not be treated as a primary strategy after a partner visa Schedule 3 refusal.

Does a partner visa Schedule 3 refusal apply the same way to every couple?

Yes, a partner visa Schedule 3 refusal is decided under the same law whether the couple is married or in a de facto relationship, and whether the relationship is opposite-sex or same-sex. Subparagraph 820.211(2)(d)(ii) applies to every onshore applicant who did not hold a substantive visa at the time of application.

De facto couples must also satisfy the de facto requirements, including the general requirement of a de facto relationship of at least twelve months before application unless an exception applies, such as registration of the relationship. Our guides to the de facto partner visa and to the 12-month rule for a Subclass 820 visa explain those rules. Same-sex couples are assessed under the same provisions, as our page on the LGBTIQ+ partner visa explains. Where a review also raises a relationship finding, the evidence for the type of relationship claimed must be consistent throughout.

An example of how a partner visa Schedule 3 refusal review is approached

The following example is hypothetical. It is not a client matter, and it is given only to show how the legal issues fit together.

An applicant held a student visa. The student visa ended while a further student visa application was being decided, and that application was later refused. The applicant then held a Bridging Visa E. Some months later the applicant lodged an onshore partner visa application with an Australian citizen partner. The officer found that criteria 3001 and 3004 were not met and that the relationship alone was not a compelling reason. The decision record did not mention that the couple's child had been born while the application was being processed.

In that situation, the review case would usually include:

• a full chronology of every visa, application, refusal and bridging visa, checked against the Department's records;
• evidence of why the further student visa application failed, and what the applicant did afterwards;
• the child's full birth certificate, evidence of Australian citizenship, and evidence of each parent's daily role;
• evidence of any health issue affecting the sponsor or the child, from treating practitioners;
• Form 888 statements from people who know the family; and
• a written submission that relies on Waensila, addresses the best interests of the child, answers each of the officer's reasons, and deals honestly with the period on the Bridging Visa E.

Whether the Tribunal is persuaded always depends on the evidence and the full history. The example shows why a partner visa Schedule 3 refusal should be reviewed as a whole case, and not answered with a short letter that repeats what the Department has already rejected.

Choosing a lawyer for a partner visa Schedule 3 refusal review

A partner visa Schedule 3 refusal review combines merits review procedure, the Schedule 3 criteria, the compelling reasons test, the best interests of children, bridging visa rules and section 48. It is a legal matter, and the quality of the evidence and submission often matters more than anything else. Our articles on what a partner visa lawyer does and on the practical differences between a migration agent and a lawyer for a partner visa explain the choices.

A person who lodged the original application through someone else can still seek new advice after a refusal. Our guides to getting a second opinion from an immigration lawyer, changing your immigration lawyer and hiring a lawyer after lodging your own application explain how that works, and our article on Form 956 and Form 956A explains how a representative is appointed. Our guide to booking an immigration lawyer consultation explains what to bring, and our guide to choosing a partner visa lawyer in Australia sets out the questions to ask.

My Migration Lawyers also acts in related immigration matters through our immigration lawyers in Sydney, Melbourne, Brisbane, Perth and Adelaide. Every consultation is conducted by video, so the review deadline, not the client's location, sets the pace.

How My Migration Lawyers handles partner visa Schedule 3 refusal reviews

My Migration Lawyers deals with complex partner visa matters and acts in many partner visa Schedule 3 refusal reviews before the Administrative Review Tribunal. The firm is capable of handling reviews where the applicant was unlawful or on a bridging visa at lodgement, where there is a long or difficult immigration history, where the relationship finding is also in dispute, and where the matter has returned to the Tribunal after a court remittal.

The firm's approach to a partner visa Schedule 3 refusal starts with the deadline and the decision record, and then builds a review case on the applicant's own history and evidence. In practice, the work includes:

• Confirming the notification date and lodging a valid ART review application within the time limit, so the bridging visa and the review are preserved.
• Obtaining the decision record and the Department's file, and identifying which Schedule 3 criterion failed, which compelling reasons were weighed, and what the officer did not consider.
• Building a complete immigration chronology from VEVO, grant notices and Department records, and checking it against every earlier form.
• Identifying circumstances that have arisen since lodgement, including children, pregnancy and health changes, and obtaining specialist reports and documents that prove them.
• Preparing Form 888 statements and witness evidence that describe specific facts, not general praise.
• Drafting a written submission that addresses subparagraph 820.211(2)(d)(ii), each element of criterion 3004, each compelling reason, the best interests of any children, and the Department's policy concerns.
• Preparing both partners for the hearing, arranging an interpreter where needed, and appearing with them.
• Managing the reconsideration after a remittal, including section 56 requests and updated health and character documents, and advising on judicial review or the Subclass 309 pathway if the refusal is affirmed.

The firm is led by Weiwei Zhang, Principal Lawyer. Information about the firm's refusal work is on our partner visa refusals page, information about waiver requests is on our Schedule 3 waivers page, information about the firm's partner visa practice is on our partner visa lawyers page, and more about the firm is on our about page.

If you have received a partner visa Schedule 3 refusal and the review deadline has not passed, book a consultation online or call 1300 040 300.