Partner Visa Sponsor Whose Previous Partner Died

A partner visa sponsor widowed after an earlier partner visa sponsorship is often surprised to learn that the sponsorship limits in regulation 1.20J still apply. The partner visa sponsor widowed in these circumstances has usually done nothing more than lose a partner. But the law looks at the sponsor's partner visa history, not at how the earlier relationship ended, and that history can delay a new sponsorship by up to 5 years unless a waiver is granted.

This guide is written for the Australian sponsor. It covers the two situations in which widowhood and the sponsorship limits meet. The first is where the sponsor previously sponsored a partner who has since died. The second is where the sponsor was themselves sponsored on a partner or fiance visa, their own sponsor died, and they were granted permanent residence under the death provisions. It explains which limit applies, how the 5 years are counted, why the death of a previous partner is a recognised ground for a waiver, what evidence helps, and what to do if the sponsorship is refused. The commercial page on partner visa sponsorship limitations explains the wider rules.

A partner visa sponsor widowed by the death of a partner deserves an accurate answer, delivered with care. The law here is mechanical. The waiver is where the sponsor's loss is properly weighed. For an overview of every partner pathway, the complete guide to partner visas in Australia sets out each subclass and stage.

What does partner visa sponsor widowed mean?

A partner visa sponsor widowed situation is one where an Australian citizen, permanent resident or eligible New Zealand citizen whose earlier partner has died now wants to sponsor a new spouse, de facto partner or fiance, and the earlier relationship involved a partner or fiance visa sponsorship.

There are three different starting points, and only two of them engage the sponsorship limits:

• The sponsor sponsored the partner who died. The deceased partner came to Australia, or applied, on a Subclass 820, Subclass 309 or Subclass 300 visa sponsored by the person who is now widowed.
• The sponsor was sponsored by the partner who died. The person who is now widowed came on a partner or fiance visa sponsored by the deceased partner, and was granted permanent residence after the death.
• Neither partner was sponsored. Both partners were Australian citizens or permanent residents through other pathways, and no partner visa was ever involved. In that case, being widowed has no effect on the right to sponsor.

The guide to partner visa sponsor eligibility and the FAQ on who can sponsor a partner visa explain the basic requirements every sponsor must meet. The guide to partner visa sponsor requirements lists them in full.

Does being widowed limit the right to sponsor a new partner?

No. Being widowed does not, by itself, limit the right to sponsor a new partner. The limits in regulation 1.20J depend on the sponsor's history of sponsoring, or being sponsored, as a partner or fiance.

The Department's Procedural Instruction on regulation 1.20J summarises the three limits:

• Regulation 1.20J(1)(a). A person may enter into at most 2 approved partner or fiance sponsorships in their lifetime.
• Regulation 1.20J(1)(b). A person who has sponsored a partner or fiance cannot have another sponsorship approved until at least 5 years after the earlier visa application was made.
• Regulation 1.20J(1)(c). A person who was themselves sponsored as a partner or fiance cannot sponsor a partner until at least 5 years after their own visa application was made.

The instruction also says these limits may be waived in compelling circumstances under regulation 1.20J(2), and that every case must be assessed against the waiver as a matter of law. The hub post on when a sponsor cannot sponsor a partner visa sets out all three limits together.

Citizenship and current status do not change the answer

Becoming an Australian citizen does not remove any of the regulation 1.20J limits. The limits look at the sponsor's partner visa history, not the sponsor's current status. A partner visa sponsor widowed after their own sponsor's death who has since become a citizen is still a person who was sponsored. The guide for a partner visa sponsor who recently became a citizen and the guide to a partner visa sponsor who is a permanent resident explain the status rules, and the guide to the partner visa sponsor's role explains what every sponsor must do.

So the question for a partner visa sponsor widowed after a loss is not "am I widowed?" It is "was a partner visa sponsorship part of my earlier relationship, and if so, who sponsored whom, and when was the application made?"

Scenario one: the sponsor previously sponsored a partner who has died

If the sponsor previously sponsored a partner whose visa was granted, that sponsorship counts under regulation 1.20J even though the partner has since died.

This is the first common partner visa sponsor widowed situation. The Subclass 820 partner visa guide and the guide to the difference between Subclass 820 and Subclass 801 explain the onshore pathway the deceased partner may have used. Consider a hypothetical Australian citizen who sponsored a spouse for a Subclass 309 and Subclass 100 visa. The visa was granted, the spouse migrated, and some years later the spouse died. The citizen later forms a new relationship and wants to sponsor the new partner.

Does the earlier sponsorship still count?

Yes, if the earlier visa was granted. The Department's instruction says the critical factor is visa grant, and that it does not matter what happens after the grant.

The instruction gives several examples that apply directly to a partner visa sponsor widowed after a sponsorship:

• The visa was granted but the applicant never travelled. The sponsorship counts.
• The visa was cancelled before the applicant entered Australia. The sponsorship counts.
• The earlier application was refused. The sponsorship does not count, because it must have resulted in the grant of a visa.
• The earlier visa was a two-stage partner visa. A sponsorship for the Subclass 820 and Subclass 801, or the Subclass 309 and Subclass 100, is counted once, not twice.

The same logic means that if the earlier partner died before any visa was granted, there was no grant and the sponsorship should not count. If the partner died after the temporary visa was granted, the sponsorship counts, even if the permanent visa was never decided. The FAQ on whether a person can sponsor more than one partner and the FAQ on whether a lawyer can help if the sponsor has sponsored a partner before explain the counting rules in short form.

The 5 year limit under regulation 1.20J(1)(b)

A partner visa sponsor widowed after sponsoring the deceased partner cannot have a new sponsorship approved until at least 5 years after the deceased partner's visa application was made, unless the waiver is exercised.

The start date is the date of the deceased partner's visa application, not the date of grant, the date of the partner's death, or the date of the funeral. For many people in a partner visa sponsor widowed situation, the earlier application was made long ago, and the 5 years have already passed. Regulation 1.20J(1)(b) then has no practical effect, although the lifetime count still matters. Where the earlier application was recent, for example where a partner died within a few years of applying, the limit can bite hard at the worst possible time.

The lifetime limit of two

The deceased partner's sponsorship uses one of the two lifetime sponsorships allowed by regulation 1.20J(1)(a).

For most people in a partner visa sponsor widowed case of this kind, that leaves one more sponsorship available. A partner visa sponsor widowed after sponsoring two earlier partners, for example one who later separated from the sponsor and one who died, has used both sponsorships. A third sponsorship can then only be approved through the regulation 1.20J(2) waiver. That situation is covered later in this guide.

Scenario two: the sponsor was sponsored and their own sponsor died

If the sponsor was themselves sponsored on a partner or fiance visa, and was granted the visa after their own sponsor died, the Department's instruction says that grant counts, and regulation 1.20J(1)(c) applies to the person who received it.

This is the second partner visa sponsor widowed situation. The person who is now the sponsor came to Australia, or applied in Australia, as the sponsored partner. Their Australian partner died. They were then granted permanent residence under the provisions that allow a partner visa to be granted after the sponsoring partner's death.

How the death provisions led to permanent residence

The Migration Regulations contain several provisions that allow a partner visa to be granted after the sponsoring partner has died, provided the relationship was genuine until the death and the applicant meets the other criteria.

The main provisions a partner visa sponsor widowed in this way may have been granted under are:

• Subclass 820 death of sponsor. Subclause 820.221(2) applies where the sponsor died after the application was made, the applicant would have continued to be the sponsor's spouse or de facto partner if the sponsor had not died, and the applicant has developed close business, cultural or personal ties in Australia.
• Subclass 801 after the Subclass 820 grant. Subclause 801.221(5) applies where the sponsor died after the Subclass 820 visa was granted. The applicant does not have to wait two years. Subclause 801.221(3) applies where the Subclass 820 was itself granted on the death of sponsor ground.
• Subclass 100. Subclauses 100.221(3) and 100.221(4B) apply where the sponsoring partner died before the Subclass 100 application was decided. The relationship must have been a partner relationship until the death.
• Subclass 300 holder. Subclause 820.211(7) applies where a Subclass 300 holder married the sponsor and the sponsor died before the Subclass 820 and Subclass 801 application was made, provided close ties in Australia have developed.

The guide to partner visa options and evidence after a partner's death explains these provisions from the applicant's side, and the FAQ on what happens to a partner visa if the sponsor dies gives a short answer.

The Administrative Review Tribunal has remitted several Subclass 820 matters about this pathway. Mulungu [2020] AATA 1815, Phung [2023] AATA 3642, Mohan [2024] AATA 813 and RUOS [2026] ARTA 56 each record the issues that the sponsor died and that the relationship was genuine before the death. Those cases concern the widowed applicant's own visa, not a later sponsorship. They are relevant here only because some people who are now a partner visa sponsor widowed in this way received their permanent visa after review.

Why regulation 1.20J(1)(c) still applies

Regulation 1.20J(1)(c) applies because the widowed person was sponsored as a partner or fiance in the application that led to their permanent visa. The death of the sponsor did not change that.

The Department's instruction is unusually direct on this point. It says that a sponsorship where the applicant was granted a partner visa as a result of the sponsor having died counts, that the sponsorship limitation would prevent the applicant from sponsoring another person within the 5 year period, and that this may be a situation where the decision maker would consider that compelling circumstances exist.

That sentence gives a partner visa sponsor widowed in this way two things at once: a clear statement that the limit applies, and a clear policy signal that a waiver may be appropriate. The FAQ on whether a person who was sponsored can now sponsor a partner explains the general rule for people who were sponsored.

Being sponsored does not use up a sponsorship

Being sponsored yourself does not use up one of the two lifetime sponsorships. The Department's instruction says that a person who was sponsored as a spouse and later sponsored a fiance has not used up their two sponsorships, because being sponsored is a separate consideration.

In a partner visa sponsor widowed case of this kind, the sponsor therefore still has two lifetime sponsorships available, unless they have also sponsored someone. Their obstacle is the 5 year period in regulation 1.20J(1)(c), not the lifetime count. The guide to the permanent partner visa explains the permanent stage that a widowed applicant reaches, and the FAQ on getting the Subclass 801 straight away explains when the two-year wait does not apply.

How are the 5 years calculated for a partner visa sponsor widowed after a sponsorship?

The 5 years run from the date the earlier visa application was made to the date the Department decides the new sponsorship. In scenario one, the earlier application is the deceased partner's application. In scenario two, it is the widowed sponsor's own application.

The Department's instruction states that the 5 year period is calculated from the date on which the first visa application was made to the date of approval or refusal of the current sponsorship, and, where the sponsor has been sponsored, from the date the sponsor's own visa application was made. It also states that sponsorship approval is a time of decision criterion. A sponsorship must be held when the visa application is made, but it only has to be approved at the time of decision. The guide on when partner visa sponsorship approval is decided explains this timing.

For a partner visa sponsor widowed after a sponsorship, that produces three working rules:

• The start date is an application date. It is never the grant date, the date of death, the date of a death certificate, or the date of citizenship.
• The end date is the decision date. It is not the date the new partner lodges or the date the sponsor lodges the sponsorship.
• The limit can expire during processing or review. If 5 years pass before the decision, regulation 1.20J(1)(b) or (c) no longer stands in the way.

Worked example for scenario one

Consider a hypothetical sponsor who sponsored a spouse for a Subclass 820 and Subclass 801 visa lodged on 1 June 2022. The Subclass 820 was granted in 2023, and the spouse died in 2024. In 2026 the sponsor forms a new relationship.

If the new partner's application is decided before 1 June 2027, regulation 1.20J(1)(b) applies and the sponsorship can only be approved through the regulation 1.20J(2) waiver. If the decision is made on or after 1 June 2027, the 5 years have passed. The earlier sponsorship still counts as one of the two lifetime sponsorships either way.

Worked example for scenario two

Consider a hypothetical sponsor who applied for a Subclass 309 and Subclass 100 visa on 1 September 2021, sponsored by an Australian spouse. The spouse died in 2023, and the sponsor was granted the permanent Subclass 100 visa under the death provisions. In 2025 the sponsor forms a new relationship.

If the new partner's application is decided before 1 September 2026, regulation 1.20J(1)(c) applies and the waiver is the only route to approval. If the decision is made on or after 1 September 2026, the limit no longer applies. The Department's own example follows the same logic: an earlier application on 1 January 1994, a new application on 1 October 1998, and a decision on 1 March 1999, by which time 5 years had elapsed and the sponsorship could be approved.

Cases where the period ended later

The Tribunal has remitted matters in which the 5 year period ended after the original decision or during review.

• In Promthong (Migration) [2024] AATA 2472, a Subclass 820 matter, the recorded issue was a prior sponsorship approved within 5 years of the time of the primary decision.
• In Dang (Migration) [2024] AATA 137, a Subclass 820 matter, the recorded issues were an application made within 5 years of a previous sponsorship, the 5 years having since passed, and a decision made without a hearing.
• In Da Silva (Migration) [2021] AATA 4909, a Subclass 309 matter, the recorded issues were an application made less than 5 years after a previous sponsorship, the limitation period having since passed, and members of the family unit.
• In Kairpal (Migration) [2019] AATA 1914, a Subclass 309 matter, the recorded issues were a previous sponsorship of a partner and the five-year limitation having passed.

For a partner visa sponsor widowed after a sponsorship, these cases confirm that the timing rule works in the sponsor's favour once the period has run. The guide to the partner visa relationship timeline explains why exact dates matter, and the earlier application dates should be confirmed from ImmiAccount records or through a freedom of information request before any calculation is relied on.

Is the death of a previous partner a compelling circumstance?

Yes. The death of the previous partner is one of the four examples of compelling circumstances affecting the sponsor listed in the Department's policy on regulation 1.20J(2). It is not automatic, but it is expressly recognised.

The four policy examples are:

• the applicant and the sponsor have a dependent child who is dependent on each of them;
• the death of the previous partner;
• the previous spouse abandoned the sponsor and there are children dependent on the sponsor requiring care and support; and
• the new relationship is longstanding.

The list is not exhaustive. Policy also identifies two general factors that may be particularly important: the nature of the hardship or detriment the sponsor would suffer if the sponsorship were not approved, and the extent and importance of the sponsor's ties to Australia, including the hardship of feeling compelled to leave Australia to maintain the relationship.

For a partner visa sponsor widowed in scenario two, the instruction goes further. Its example on the death of the sponsor says the situation may be one where the decision maker would consider that compelling circumstances exist. The FAQ on what compelling and compassionate circumstances mean for a partner visa gives a short overview, and the guide to compelling and compassionate circumstances with examples explains how the phrase is applied.

Why the death example exists

The death example exists because the sponsorship limits are aimed at abuse of the partner and fiance migration provisions, and the death of a partner is the clearest case of a relationship that ended for reasons outside the sponsor's control.

The Department's instruction says the purpose of the limitation is to prevent abuse of the partner and fiance provisions, and that this purpose should be kept in mind when deciding whether to exercise the waiver. It also discusses so-called innocent sponsors, whose claims depend on whether the bona fides of the original relationship can be established and whether the first sponsorship was careless, meaning made with the expectation that the sponsor would be free to try again if things did not work out.

A partner visa sponsor widowed by a partner's death usually sits at the far end of that spectrum. The earlier relationship did not fail. It ended in bereavement. Where the earlier relationship was accepted as genuine, and in scenario two the Department had to be satisfied it was genuine until the death, the concerns that drive the limit are weak.

Why the death alone may not be enough

The death of the previous partner is a strong starting point, but a partner visa sponsor widowed waiver submission that relies only on the death certificate is weaker than it should be.

Decision makers weigh every aspect of the sponsor's circumstances. The Tribunal has also recorded, in SEOL (Migration) [2023] AATA 4410, a Subclass 820 matter, the issue that previous failed relationships are not themselves compelling circumstances. A death is not a failed relationship, but the lesson is the same: the submission must show what the history means for the sponsor now and why refusal would cause real hardship. The guide on why compelling reasons are not accepted explains common weaknesses, and the guide to compelling reasons waiver evidence explains what decision makers expect to see.

Grief, health and recovery

The effect of the bereavement on the sponsor's health and life can be an important part of a partner visa sponsor widowed waiver case.

The Tribunal has remitted regulation 1.20J matters in which health was a recorded issue. In ZHANG (MIGRATION) [2024] ARTA 113, a Subclass 820 matter, the recorded issues were compelling circumstances, significant mental and physical health issues, and a long standing dependent relationship. In Kumar (Migration) [2023] AATA 4621, a Subclass 309 matter, the recorded issues were that the sponsor was affected by the limitation, had no immediate family or close friends in India, and mental health.

For a partner visa sponsor widowed after a sudden death or a long illness, relevant evidence may include reports from a treating general practitioner, psychologist or grief counsellor. The most useful reports explain the sponsor's history and present condition, the support the new partner provides, and the likely effect of a long separation. The guide to partner visa mental health conditions discusses how health information is handled.

Children of the earlier relationship

Children often strengthen a partner visa sponsor widowed waiver case, especially where the sponsor is now the sole parent of children of the deceased partner.

The policy example about a sponsor left with dependent children who require care and support refers to abandonment, not death. But the underlying concern, a sponsor caring alone for dependent children, is directly relevant to a widowed sponsor and fits within the open list. Where the new partner is already involved in caring for those children, that role should be evidenced. Where the new couple has a child together, the first policy example may apply. In 2004843 (Migration) [2023] AATA 4514, a Subclass 820 matter, the recorded issues were compelling circumstances, a sponsorship less than five years after a partner visa application, and a child born of the relationship. The guide to partner visa compelling reasons and Australian citizen children and the guide to partner visa stepchildren explain how children's interests are presented.

A longstanding new relationship

A longstanding new relationship is another listed example, and in a partner visa sponsor widowed matter it can combine with the death of the previous partner to make a stronger case.

In 2002289 (Migration) [2023] AATA 4513, a Subclass 820 matter, the recorded issues included compelling circumstances to waive and a longstanding, committed, registered relationship. The guide to compelling reasons and the length of the relationship and the guide to the partner visa long-term relationship explain how duration is evidenced.

Ties to Australia

A partner visa sponsor widowed in scenario two has already shown close ties to Australia, because the death provisions usually required them.

Subclauses 820.221(2) and 820.211(7) require the applicant to have developed close business, cultural or personal ties in Australia. The same ties, and those built since, are directly relevant to the policy factor about the hardship of leaving Australia. A scenario one sponsor, who is often an Australian citizen by birth, may have lifelong ties, a home, employment, ageing parents and the grave of the deceased partner in Australia. These facts should be set out specifically, with evidence.

What evidence supports a partner visa sponsor widowed waiver request?

The strongest evidence shows the history of the earlier relationship, the fact and effect of the death, and the hardship refusal would cause the sponsor now.

A partner visa sponsor widowed waiver request will usually draw on:

• The death certificate. An original or certified copy of the deceased partner's death certificate.
• The earlier visa records. The grant notice for the deceased partner's visa in scenario one, or for the sponsor's own visa in scenario two, and the earlier application dates.
• The sponsor's statement. A clear, chronological statement covering the earlier relationship, the death, the period since, the new relationship and the hardship refusal would cause.
• Health and support evidence. Reports from treating practitioners or counsellors acting in their professional capacity.
• Children. Birth certificates, school and medical records, and evidence of the sponsor's care role and the new partner's involvement.
• Ties to Australia. Employment, property, community, family and caring responsibilities in Australia.
• The new relationship. Evidence across the financial, household, social and commitment aspects of the relationship.
• Form 888 statements. Supporting witness statements on Form 888 from Australian citizens or permanent residents who know the sponsor and the new partner.

The guide to Form 888 witness statements and the FAQ on what a Form 888 statement should say explain how to make those statements useful. A witness who knew the sponsor during the earlier relationship and after the death can speak to the sponsor's loss, recovery and new relationship in a way that short, generic statements cannot. The guide to who can sign a Form 888 explains witness eligibility, and the FAQ on how many Form 888s are needed covers numbers.

Writing the sponsor's statement

The sponsor's statement is usually the centre of a partner visa sponsor widowed waiver request, and it should be written in the sponsor's own voice.

A good statement is chronological, factual and specific. It explains how the earlier relationship began, the visa history, how the partner died, how the sponsor coped, how the new relationship began and developed, and what refusal of the sponsorship would mean in practical terms. It avoids exaggeration. It does not need to describe the death in distressing detail. In a partner visa sponsor widowed matter, a calm and precise statement is more persuasive than an emotional one. The guide to writing a partner visa relationship statement and the FAQ on what a relationship statement should include explain the structure, and the guide to the four pillars of partner visa evidence explains how the new relationship should be evidenced alongside it.

How soon after a partner's death can a new partner be sponsored?

There is no rule that sets a minimum period after a partner's death before a new relationship can begin or a new sponsorship can be lodged. The timing will still be examined, both under regulation 1.20J and in the assessment of whether the new relationship is genuine.

People grieve in different ways, and a partner visa sponsor widowed after a long marriage may approach a new relationship very differently from one widowed after a short one. Some widowed sponsors do not form a new relationship for many years. Others find companionship sooner. The law does not require a set period of mourning. But a partner visa sponsor widowed relatively recently should expect the decision maker to look closely at when and how the new relationship began, and should be ready to explain it with evidence.

When the new relationship began

The start date of the new relationship should be identified carefully and recorded consistently across the sponsorship, the visa application and the relationship statements.

If the new relationship began after the death, there is no difficulty in principle. The genuine and continuing relationship test then applies to the new relationship in the ordinary way. The guide to the genuine and continuing relationship test and the FAQ on what genuine and continuing relationship means set out the test.

A new relationship and the earlier death of sponsor grant

For a partner visa sponsor widowed in scenario two, forming a new relationship after the sponsor's death does not, by itself, undermine the earlier grant.

The Subclass 820 policy on the death of sponsor provisions says that decision makers should be mindful that an applicant who formed a new spouse or de facto relationship after the original sponsor's death may still be able to satisfy the criterion that they would have continued to be the sponsor's partner. That policy recognises that life continues after bereavement.

The position is different if the new relationship appears to have started before the death. The death provisions required the earlier relationship to be genuine until the death. An overlap may lead the Department to ask questions about the accuracy of the earlier application, and in a serious case inaccurate information in an earlier application can expose a visa holder to cancellation powers. That risk depends heavily on the facts, and an apparent overlap often has an innocent explanation. The FAQ on whether a permanent partner visa can be cancelled explains the general position. A partner visa sponsor widowed in this situation should obtain advice before lodging anything.

Short relationships and other hurdles

A short new relationship may face separate requirements that have nothing to do with regulation 1.20J.

For a de facto relationship, the applicant generally needs 12 months of de facto relationship before applying, unless an exception such as registration applies. The guide to the de facto 12 month rule explains the exceptions. A partner visa sponsor widowed and now engaged may be considering a Subclass 300 visa, which is also covered by regulation 1.20J. The FAQ on the difference between a fiance visa and a partner visa and the Subclass 300 visa page explain that pathway. The guide to partner visa evidence for a genuine relationship explains how the new relationship is proved.

What if a widowed sponsor has already sponsored two partners?

A partner visa sponsor widowed after sponsoring two earlier partners has reached the lifetime limit in regulation 1.20J(1)(a), and a third sponsorship can only be approved if the Department is satisfied that compelling circumstances justify a waiver under regulation 1.20J(2).

This can happen where, for example, a sponsor sponsored a first spouse who later separated from them, and then sponsored a second spouse who died. Both sponsorships count if both visas were granted. The death of the second partner is still a listed example of compelling circumstances, so the waiver case starts from a recognised ground.

The Tribunal has remitted several matters involving two previous sponsorships:

• In Ho (Migration) [2023] AATA 4220, a Subclass 820 matter, the recorded issues were the lifetime limit of 2 approved sponsorships, waiver, and compelling circumstances.
• In Hung (Migration) [2023] AATA 4772, a Subclass 820 matter, the recorded issues were two previous sponsorships, waiver, and compelling circumstances affecting the sponsor.
• In Mayu (Migration) [2021] AATA 2301, a Subclass 820 matter, the recorded issues were two previous sponsorships, compelling circumstances affecting the sponsor, and that the first husband left after obtaining permanent residency.

A third sponsorship receives close scrutiny, and a partner visa sponsor widowed in this position should expect detailed questions about each earlier relationship. The submission should deal openly with every earlier sponsorship, explain how each relationship began and ended, and show why the present circumstances are compelling. The FAQ on whether a person can apply for a partner visa with a new partner after a previous one explains the general position.

Does a widowed sponsor have to disclose the earlier sponsorship?

Yes. The sponsorship asks about the sponsor's previous sponsorships and history, and the answers must be complete and accurate. The Department also checks its own records.

The Department's instruction says that, in assessing regulation 1.20J, officers have regard to the information provided by the sponsor in the sponsorship and to departmental sponsorship and nomination database records. A partner visa sponsor widowed after a sponsorship should assume that the earlier sponsorship, and the sponsor's own earlier application in scenario two, will be found. Non-disclosure damages credibility and can raise integrity concerns. The guide to the partner visa Form 40SP sponsorship form and the FAQ on what Form 40SP is explain the sponsorship questions. The guide to partner visa previous relationship history explains how earlier relationships are assessed.

Disclosure is also an opportunity for a partner visa sponsor widowed after an earlier sponsorship. The earlier history, honestly stated, is the foundation of the waiver case. A sponsor who explains the death, the earlier relationship and the present circumstances at the outset frames the application on their own terms.

Should a partner visa sponsor widowed after a sponsorship lodge now or wait?

It depends on how close the 5 year date is, how strong the waiver case is, and where the new partner is. Because the limit is tested at the time of decision, lodging with a full waiver submission is often better than waiting.

There are three broad strategies:

• Lodge now with a waiver request. The application is lodged with a written regulation 1.20J(2) submission and evidence. If the waiver is accepted, approval is possible inside the 5 years. If the 5 years pass before the decision, the limit falls away.
• Lodge close to the 5 year date. If the date is near, the limit may pass before the decision. A waiver submission should still be included in case the decision is made sooner than expected.
• Wait until 5 years have passed. This avoids regulation 1.20J(1)(b) or (c), but not the lifetime limit, and it may mean a long separation.

In Rogers (Migration) [2020] AATA 4743, a Subclass 309 matter, the recorded issues were that 5 years had not lapsed since the earlier visa application, that 5 years elapsed during review, and a genuine and continuing relationship. In Ba (Migration) [2021] AATA 1251, a Subclass 820 matter, the recorded issue was that the five-year limitation had expired. These cases show how timing and review interact. They are not a reason to lodge an application expected to fail.

Location also matters in a partner visa sponsor widowed case. A new partner in Australia may be able to apply for the Subclass 820 and Subclass 801 visa if the visa and condition rules allow it. A new partner overseas will usually apply for the Subclass 309 and Subclass 100 visa. The Subclass 820 visa page, the Subclass 309 visa page and the guide comparing onshore and offshore partner visas explain the options. The guide to the partner visa two-stage process explains why each pathway involves two grants but one sponsorship.

What happens if the sponsorship is refused?

If the Department refuses to approve the sponsorship, the partner visa must be refused, and the refusal can usually be reviewed by the Administrative Review Tribunal.

Sponsorship approval is a time of decision criterion for the Subclass 820, Subclass 309 and Subclass 300 visas, and the sponsorship is decided inside the visa decision. There is no separate refusal notice to the sponsor. The FAQ on what happens if a partner's sponsorship is refused explains this.

The review rules are strict:

• Deadline. The review application must be made within 28 days after the applicant is notified, or 7 days if the applicant is in immigration detention. The deadline cannot be extended. The FAQ on how to work out the review deadline and the guide to the partner visa appeal deadline explain the counting.
• Who applies. For Subclass 820 and Subclass 309 refusals, the visa applicant applies. For a Subclass 300 refusal, the sponsor applies.
• Fee. The Tribunal fee for a migration review is $3,727 for fees paid on or after 1 July 2026. A 50% reduction may be available for financial hardship, and 50% is refunded if the decision is set aside or remitted. The FAQ on how much a Tribunal review costs and whether the fee can be reduced and the guide to partner visa ART fees explain the fee rules.
• Bridging visa. An onshore Subclass 820 applicant who holds a Bridging visa A usually keeps it while a valid review application is pending. The FAQ on what happens to a bridging visa if a partner visa is refused explains the detail.

If the Tribunal remits the case, the Department decides the application again in line with the Tribunal's findings, as the FAQ on what happens when the Tribunal sends a case back explains. The guide to partner visa ART evidence explains how a partner visa sponsor widowed waiver case is presented at review.

The Tribunal decides on the law and facts at the time of its own decision. A 5 year period that ends during review can be taken into account, and new waiver evidence can be presented. The FAQ on giving the Tribunal new evidence, the guide to how the partner visa ART review works and the guide to how the Tribunal assesses compelling reasons explain the process. The FAQ on how to challenge a refusal involving sponsorship limitations is a short starting point, and the partner visa refusals page explains how My Migration Lawyers approaches refused matters. Where time is short, the urgent ART visa refusal applications page explains the urgent service.

Common mistakes in partner visa sponsor widowed cases

The most common mistakes are assuming the limits disappeared with the death, counting from the wrong date, and relying on the death certificate alone.

A partner visa sponsor widowed after a sponsorship can avoid most problems by checking these points:

• Assuming the death cancelled the earlier sponsorship. It did not. A sponsorship that led to a grant still counts.
• Assuming widowhood alone creates a limit. It does not. Only a partner visa history does.
• Counting from the date of death or grant. The 5 years run from the earlier application date.
• Counting to lodgement. The end point is the decision on the new sponsorship.
• Leaving the waiver to the Department. The Department must consider regulation 1.20J(2), but it can only weigh what is in front of it.
• Incomplete disclosure. Every earlier sponsorship and the sponsor's own partner visa history should be declared.
• Inconsistent dates. Dates in the new application should match the earlier file.
• Missing the review deadline. The 28 day period cannot be extended.

The guide to a partner visa sponsor risk assessment before lodgement explains how these issues are checked before lodging, and the guide to the partner visa sponsorship assessment explains what the decision maker checks. The guide on what the Department asks in a sponsor interview explains how a partner visa sponsor widowed after a sponsorship should prepare if the Department wants to speak to them.

How My Migration Lawyers helps a partner visa sponsor widowed after a sponsorship

My Migration Lawyers advises and acts for Australian sponsors who have lost a partner and now want to sponsor someone new, where an earlier partner or fiance visa sponsorship brings regulation 1.20J into play. These are complex cases, as the FAQ on what makes a partner visa complex explains. They require a precise reading of the sponsor's history, an accurate date calculation, and a waiver submission that presents the sponsor's loss truthfully and with dignity.

The firm acts in many matters of this exact type, in both situations covered in this guide, and is capable of handling them from first advice through to decision and, where needed, Tribunal review. For a partner visa sponsor widowed after a sponsorship, the work usually includes:

• Identifying which limit applies, whether regulation 1.20J(1)(a), (b) or (c), by checking every earlier application, grant and date.
• Advising whether to lodge now, close to the 5 year date, or later, and on the right visa for the new partner.
• Preparing a regulation 1.20J(2) compelling circumstances submission built around the death of the previous partner, the sponsor's health, children and ties to Australia, and the strength of the new relationship.
• Helping the sponsor and witnesses prepare statements, including Form 888 statements, that are accurate and consistent with the earlier file.
• Responding to Department requests and section 57 letters. The guide to responding to a section 57 natural justice letter explains that process.
• Preparing and presenting an Administrative Review Tribunal review if the sponsorship is refused.

The firm's partner visa lawyers work with clients across Australia and overseas by video. The answer on whether there is a partner visa lawyer who handles complex cases describes the firm's approach, and sponsorship limitation matters are supervised by Weiwei Zhang, Principal Lawyer.

If you are a partner visa sponsor widowed after an earlier sponsorship and want to sponsor a new partner, or if a sponsorship has already been refused, Book a Consultation with My Migration Lawyers, or call 1300 040 300.