Partner Visa Statutory Declarations

What is a partner visa statutory declaration?

A partner visa statutory declaration is a formal written statement of facts, made under the Statutory Declarations Act 1959, that a person declares to be true and that is lodged in support of a partner visa application. For most couples a partner visa statutory declaration is not a legal requirement, and supporting witnesses complete Form 888 statements instead. For one group of applicants in Australia the law is different. An applicant to whom section 48 of the Migration Act 1958 applies must lodge two statutory declarations at the time of application, and Form 888 statements will not do.

This article explains when a partner visa statutory declaration is required, what the Migration Regulations 1994 say each declaration must contain, how a Commonwealth statutory declaration is made and witnessed, and why lodging the wrong document can make the whole application invalid. It is written for couples in Australia where the applicant has had a visa refused or cancelled since last arriving, and for anyone who has been told that "a Form 888 is a stat dec". It is not. For the full picture of the visa itself, read the complete guide to partner visas in Australia.

The distinction matters because validity is a pass or fail test. A decision maker who finds that a partner visa statutory declaration was required and not provided does not weigh the evidence or ask for more. The application is simply not a valid application. That is a very different result from a weak application that can be strengthened later, and it is why My Migration Lawyers treats the partner visa statutory declaration requirement as one of the first things to check on any onshore file. Couples who want that check done before lodging can speak with our partner visa lawyers.

The short answer for most couples

Most applicants never need a partner visa statutory declaration. If the applicant holds a substantive visa when the combined Subclass 820 onshore partner visa and Subclass 801 application is lodged, or has never had a visa refused or cancelled since last entering Australia, the section 48 rules do not apply. Those couples use Form 888 statements from friends and family as part of the wider evidence of a genuine relationship, and there is no rule that two statutory declarations must be lodged on day one.

The partner visa statutory declaration requirement is aimed at a narrower group: people in Australia who are already subject to the section 48 bar. That group is usually the group with the least room for error, because many of them also have no substantive visa and face the Schedule 3 criteria for applicants who are unlawful or on a bridging visa. A partner visa statutory declaration mistake in that setting can cost the applicant their only realistic pathway to stay in Australia.

When is a partner visa statutory declaration required instead of Form 888?

A partner visa statutory declaration is required when the applicant is a person to whom section 48 of the Migration Act 1958 applies and is applying in Australia for the combined Subclass 820 and Subclass 801 partner visa. In that situation subparagraph 1124B(3)(e)(iii) of Schedule 1 to the Migration Regulations 1994 requires two statutory declarations to be provided at the same time and place as the application is made. Form 888 statements do not satisfy that requirement.

Item 1124B of Schedule 1 sets out the validity requirements for the Partner (Residence) (Class BS) visa, which contains the permanent Subclass 801. The Department's procedural instruction for the Subclass 820 explains that an application for the Subclass 820 must be made at the same time and place as an application for the Subclass 801. The practical result is that the additional section 48 requirements in paragraph 1124B(3)(e) control whether the combined onshore application can be validly made at all. The Subclass 820 vs Subclass 801 explainer sets out how the two stages fit together.

Who section 48 applies to

Section 48 applies, subject to some exceptions, to a non-citizen in Australia who does not hold a substantive visa and who has had a visa refused or cancelled since last entering Australia. A bridging visa is not a substantive visa. So a person who was refused a student visa, a skilled visa or a visitor visa, and who is now on a bridging visa or has no visa at all, will often be a person to whom section 48 applies. The same is true of a person whose visa was cancelled and who has not since left Australia. Our page on visa cancellations explains how a cancellation can leave a person in exactly this position.

A person subject to section 48 can only make a valid application in Australia for a limited range of visas prescribed by regulation 2.12 of the Migration Regulations 1994. The partner visa is one of them. That is why the partner pathway is so important to people with a refusal history, and why the extra validity rules in paragraph 1124B(3)(e) exist. The Department's policy states the purpose plainly: applicants subject to a section 48 bar are required to meet a higher threshold than other applicants to help maintain the integrity of the Partner visa program. The partner visa after a visa refusal guide covers the wider strategy for these applicants.

Working out whether section 48 applies is itself a legal question. It depends on the exact visa history since the last entry, whether the refused visa was a bridging visa, how the person left and re-entered Australia, and what visa they hold on the day of lodgement. A person who is unsure should not guess. A partner visa statutory declaration lodged when it was not needed causes no harm, but a partner visa statutory declaration omitted when it was needed is fatal to validity.

The three extra validity requirements in paragraph 1124B(3)(e)

Paragraph 1124B(3)(e) of Schedule 1 imposes three additional requirements on an applicant to whom section 48 applies. Each must be met on the day the application is made.

• Subparagraph 1124B(3)(e)(i): the applicant must not have been refused a partner visa since last entering Australia. A person who has already had a partner visa refused in Australia since their last entry cannot make another valid partner application onshore under this pathway.
• Subparagraph 1124B(3)(e)(ii): the online sponsorship form, Form 40SP, completed and signed by the Australian citizen, Australian permanent resident or eligible New Zealand citizen who claims to be the applicant's spouse or de facto partner, must be provided at the same time and place as the application.
• Subparagraph 1124B(3)(e)(iii): two statutory declarations meeting the requirements set out in the next section must be provided at the same time and place as the application.

The first requirement explains why a second onshore partner application after a refusal is so difficult, and why the appeal options after a partner visa refusal matter so much. Paragraph 1124B(3A)(b) adds a further rule for applying subparagraph (e)(i): if the applicant leaves and re-enters Australia while holding a bridging visa, the applicant is taken to have been continuously in Australia despite the travel. Travel on a Bridging visa B therefore does not reset the "last entry" date for this purpose.

The second requirement departs from the usual position. For most onshore applicants the sponsorship form can follow the application. For a person subject to section 48 it must be provided with the application. The third requirement is the partner visa statutory declaration rule, and it is the one most often misunderstood.

Paragraph 1124B(3A)(a) also matters to families. If a person subject to section 48 meets the requirements in paragraph 1124B(3)(e), an application by a person who claims to be their dependent child is also a valid application. A missing partner visa statutory declaration can therefore affect children included in the application as well as the primary applicant.

What subparagraph 1124B(3)(e)(iii) requires from each declaration

Subparagraph 1124B(3)(e)(iii) requires two statutory declarations, and each one must meet three conditions: it must be made by an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is not the partner; it must declare that the applicant and the partner are in a married relationship or de facto relationship; and it must have been declared no more than 6 weeks before the day on which the application is made. Both declarations must be provided at the same time and place as the application.

Each of those conditions is a separate test. A partner visa statutory declaration that meets two of them and fails the third does not count. If only one of the two declarations is compliant, the requirement for two is not met.

Condition 1: who makes the declaration

The maker of each partner visa statutory declaration must be an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The partner cannot be one of the two makers. The provision does not require the maker to be a relative or a friend of any particular length of time, but the declaration must be made by someone in a position to declare that the couple are in a married or de facto relationship. In practice that means a person who knows the couple and has seen the relationship.

A common mistake is to ask a friend who is a temporary visa holder, or a relative overseas who is not an Australian citizen. Their evidence may be valuable as a Form 888 statement, but it cannot count towards the two declarations. Another mistake is to count the sponsoring partner's own declaration as one of the two. The regulation expressly excludes the partner.

Condition 2: what the declaration must declare

Each partner visa statutory declaration must declare that the applicant and the partner are in a married relationship or de facto relationship. A declaration that only says the declarant knows both people, or that they are "close" or "good people", does not meet the test. The declaration needs to state the relationship itself. The wider content of the declaration is discussed later in this article under the heading on how the declarations must deal with the relationship.

Condition 3: the 6-week window

Each partner visa statutory declaration must have been declared no more than 6 weeks before the day on which the application is made. The date that counts is the date the declaration was made, not the date it was uploaded or the date the application form was started in ImmiAccount. A declaration signed seven weeks before lodgement fails this condition even if every other element is perfect.

The 6-week window catches couples who prepare early and then wait for other documents, such as police certificates or translations, before lodging. It also catches couples whose lodgement is delayed by a technical problem or by a change of plan. If the lodgement date moves, the dates on both declarations must be checked again. Anyone preparing an ImmiAccount application should treat the 6-week window as a deadline that runs backwards from the lodgement date.

Same time and place as the application

The declarations must be provided at the same time and place as making the application. For an online partner application, that means uploading both declarations with the application. A plan to "send them next week" is not compliance. The validity of the application is decided on the day it is made, and a partner visa statutory declaration provided afterwards does not cure an application that was invalid when lodged.

Why Form 888 will not do for a section 48 applicant

Form 888 will not do because Form 888 is a supporting statement and not a statutory declaration, and subparagraph 1124B(3)(e)(iii) expressly requires two statutory declarations. Lodging Form 888 statements in place of the two declarations means the section 48 validity requirement is not met, and the application is not a valid application.

Form 888 has a proper role in partner visa applications generally. It allows a supporting witness to give evidence about the couple, and decision makers read it alongside the other material in the file. Our articles on who can make a Form 888 and what it should say and Form 888 example answers and common mistakes explain that role. What Form 888 cannot do is stand in for the specific document the regulation names. When the law says statutory declaration, a supporting statement on a different form does not meet it.

The confusion arises because a Form 888 is signed, it is often witnessed, and it is commonly called a "stat dec" by people helping couples prepare their applications. A partner visa statutory declaration and a Form 888 statement can look similar on the page. Both are written by someone who knows the couple, and both describe the relationship. The legal difference is in the instrument. A partner visa statutory declaration for a section 48 applicant must be a statutory declaration that satisfies the conditions in subparagraph 1124B(3)(e)(iii). A Form 888 is a supporting statement and is not that document.

The practical rule

The practical rule is simple. If section 48 applies to the applicant, two separate Commonwealth statutory declarations must be prepared, each meeting the three conditions in the regulation, and they must be uploaded with the application. Form 888 statements may also be lodged as additional supporting evidence. They can sit alongside the two declarations, but they never replace them.

If section 48 does not apply, there is no requirement for a partner visa statutory declaration at the time of application. Form 888 statements remain the usual way for friends and family to support the relationship, and the partner visa document checklist and the 820 partner visa evidence checklist explain how those statements fit with the rest of the evidence.

Why the difference is not a technicality

Some people describe the partner visa statutory declaration rule as a technicality. It is better understood as a gate. Section 48 restricts who can apply for a visa in Australia after a refusal or cancellation. The Migration Regulations open that gate for genuine partners, but only on conditions. The two declarations are one of those conditions. They provide independent confirmation, from people with a permanent connection to Australia, that the relationship exists before the Department will accept an application from a person who has already been refused or cancelled. Treating a supporting statement as if it were the required declaration does not open the gate.

What happens if the partner visa statutory declaration requirement is not met?

If the partner visa statutory declaration requirement is not met, the application is not a valid application. Under section 46 of the Migration Act 1958, an application that does not satisfy the validity criteria prescribed in Schedule 1 is not a valid application, and the Department cannot grant a visa on it.

The consequences of invalidity are serious and they follow one another quickly.

• No visa can be granted. The Department does not assess the genuineness of the relationship on an invalid application, however strong the evidence is.
• No bridging visa arises from the invalid application. A bridging visa granted because a valid partner application is on foot cannot come from an application that was never valid. An applicant who was relying on the new application to remain lawful may therefore be left without lawful status. The bridging visas in Australia guide explains how bridging visas attach to valid applications.
• There is no refusal decision to take to review. A finding that an application is invalid is not a refusal on the merits, so the usual pathway to the Administrative Review Tribunal for a refused partner visa does not arise in the same way. The ART review guide explains what review normally involves after a refusal.
• Time passes. If a new application must be made, it must meet every validity requirement again on its own lodgement day, including two fresh partner visa statutory declaration documents made within 6 weeks of that new date.

An invalid application is also hard to detect from the outside. ImmiAccount may accept the upload and generate an acknowledgement. Payment may be processed. The applicant may believe the application is on foot until the Department writes to say otherwise. By then the applicant's position may have changed, particularly if they had no substantive visa and were relying on the new application for their status. Couples in that position should obtain urgent immigration lawyer advice without delay.

Validity cannot be repaired after lodgement

Validity is tested at the moment the application is made. A partner visa statutory declaration uploaded the following week, or provided in response to a section 56 request for more information, does not turn an invalid application into a valid one. The regulation requires the declarations to be provided at the same time and place as the application, and that moment has passed.

This is the central practical difference between a partner visa statutory declaration and ordinary relationship evidence. Ordinary evidence can be added during processing. A missing partner visa statutory declaration cannot. The only cure is a new, valid application, if the applicant can still make one.

The link with Schedule 3

Many applicants to whom section 48 applies also do not hold a substantive visa when they apply. Those applicants generally face the Schedule 3 criteria at the time of application, which can be waived only where there are compelling reasons. A Schedule 3 waiver is assessed on the merits during processing, but it can only be considered if the application is valid in the first place. Getting every partner visa statutory declaration right is therefore the step that makes a Schedule 3 waiver request possible at all. Our Schedule 3 partner visa waiver article explains what a waiver request needs to show.

What a statutory declaration is under the Statutory Declarations Act 1959

A statutory declaration is a written statement of facts that a person declares to be true in the form required by the Statutory Declarations Act 1959, and that is made in one of the ways the Act allows. The Attorney-General's Department describes it as a type of legal document that sets out facts that the maker declares to be true and accurate.

For a Commonwealth purpose such as a partner visa statutory declaration, the declaration is made under the Commonwealth Act, not under state or territory legislation. The Attorney-General's Department states that a Commonwealth statutory declaration must be made on an approved form, and that the maker cannot create their own form. A partner visa statutory declaration prepared on a home-made template, or on a state form designed for state purposes, risks not being a Commonwealth statutory declaration at all.

The offence of making a false declaration

Section 11 of the Statutory Declarations Act 1959 makes it an offence to intentionally make a false statement in a statutory declaration. The approved Commonwealth form warns that the punishment for that offence is a term of imprisonment of 4 years. This is the feature that sets a statutory declaration apart from an ordinary letter. The maker is exposed to criminal liability if they intentionally declare something false.

That exposure has practical consequences for a partner visa statutory declaration. The person making it must have real knowledge of the relationship. They should declare only what they know, and they should be honest about how they know it. A declarant who signs a document prepared by someone else without reading it, or who declares a relationship they have not seen, puts themselves at risk and damages the application. False or misleading information can also engage the integrity public interest criterion and lead to refusal.

Statutory declarations are evidence, not proof

A statutory declaration is evidence. It is not conclusive proof of the facts it states. Decision makers weigh a partner visa statutory declaration in the same way they weigh other evidence, by looking at who made it, what the maker could actually know, and whether it is consistent with the rest of the file. For validity, the two declarations must simply exist and comply with subparagraph 1124B(3)(e)(iii). For the merits, their content is tested like any other evidence. The preparing evidence of a genuine relationship article explains how evidence is weighed as a whole.

Who can witness a partner visa statutory declaration?

A partner visa statutory declaration made on paper or electronically must be witnessed by an approved witness listed in Schedule 1 of the Statutory Declarations Regulations 2023, and the witness cannot be the same person as the declarant. A partner visa statutory declaration made digitally through myGov does not need a witness.

The Attorney-General's Department groups approved witnesses into three broad categories.

• People currently licensed or registered in Australia in listed occupations, including architects, chiropractors, dentists, financial advisers, financial planners, legal practitioners, medical practitioners, midwives, migration agents, nurses, occupational therapists, optometrists, patent attorneys, pharmacists, physiotherapists, psychologists, trade marks attorneys and veterinary surgeons.
• People enrolled as legal practitioners on the roll of the Supreme Court of a state or territory or the High Court of Australia.
• People holding listed approved positions, which include justices of the peace, police officers, teachers, judges, magistrates, notaries public, Australia Post agents, certain accountants who hold specified memberships, and Australian Public Service employees with the required length of service, among many others.

The witness must hold the relevant position or registration at the time they witness the declaration. The Attorney-General's Department also states that approved witnesses must have the required connection to Australia, with an exception for notaries public appointed overseas.

Witnessing when the declarant is overseas

The two declarations for a section 48 applicant must be made by Australian citizens, Australian permanent residents or eligible New Zealand citizens, but the maker does not have to be in Australia. A maker who is overseas can have the declaration witnessed in person by an approved witness with a connection to Australia who lives in that country, by a notary public appointed overseas, or by authorised Commonwealth or Australian Trade and Investment Commission staff. An approved witness in Australia can also witness the declaration by video link from anywhere in the world, and the maker can use myGov to make a digital declaration while overseas without a witness.

What the witness does and does not do

The witness confirms that the declaration was made by the declarant in the required way. The witness is not confirming that the facts in the partner visa statutory declaration are true. That responsibility sits with the declarant. A justice of the peace who witnesses a partner visa statutory declaration is not vouching for the relationship. This is why the identity, status and knowledge of the person making the declaration matter more to the Department than the identity of the witness.

How a partner visa statutory declaration can be executed

A partner visa statutory declaration can be executed in three ways under the Statutory Declarations Act 1959 as amended by the Statutory Declarations Amendment Act 2023, which commenced on 1 January 2024: on paper with an approved witness present in person, electronically with an approved witness watching by video link, or digitally through an approved online platform without a witness. Each method produces a valid Commonwealth statutory declaration if its own rules are followed.

Paper with an in-person witness

The traditional method is a paper declaration signed in front of an approved witness. The Attorney-General's Department states that the declarant and the witness must meet and sign the statutory declaration together, at the same time and in the same place. The declarant signs while the witness watches, and the witness then completes the witness sections. Every page must be signed, including any extra pages or attachments. A partner visa statutory declaration that runs over several pages, or that refers to attachments, should be checked page by page before it is scanned and uploaded.

Electronic execution by video link

The 2023 amendments made permanent the option of executing a Commonwealth statutory declaration electronically with the witness attending by video link. The declarant and the witness do not need to be in the same place, but they must still sign together at the same time, and the witness must see the declarant sign. The Attorney-General's Department states that the camera must be positioned so that the witness can see the declarant sign the form, whether with a pen or by electronic signature. Common video platforms can be used. This method is useful where the maker of a partner visa statutory declaration lives far from the couple or from an approved witness.

Digital execution through myGov

The 2023 amendments also created a way to make a Commonwealth statutory declaration digitally, without a witness, through an approved platform and an approved digital identity service. The Attorney-General's Department identifies myGov, used with a Digital Identity, as the approved platform. In this method the digital identity check takes the place of the witness. For a maker who is overseas, or who cannot easily reach an approved witness, a digital partner visa statutory declaration can be the most practical option.

Choosing a method

All three methods produce a Commonwealth statutory declaration. The choice is practical. What does not change is the content test in subparagraph 1124B(3)(e)(iii): whichever method is used, each partner visa statutory declaration must be made by an eligible person who is not the partner, must declare the married or de facto relationship, and must be made within 6 weeks before lodgement. The date of execution recorded on the declaration is the date that is measured against the 6-week window, so the method chosen should not create uncertainty about the date.

How the declarations must deal with the relationship

Each partner visa statutory declaration must, at a minimum, declare that the applicant and the partner are in a married relationship or de facto relationship, because that is the content the regulation requires. A declaration that does not state the relationship does not meet subparagraph 1124B(3)(e)(iii), however much else it says about the couple.

Beyond that minimum, a partner visa statutory declaration is stronger when it explains how the declarant knows the couple and what the declarant has personally seen. A short, accurate declaration from someone who has known the couple for years is better evidence than a long declaration full of statements the maker could not know. The declarant should identify themselves, state their citizenship or permanent residence status, explain their connection to the couple, and declare the relationship in clear words.

The two declarations should be consistent with the rest of the application. The applicant and partner give their own account of the relationship in their partner visa relationship statement, and the forms record dates, addresses and history. If a partner visa statutory declaration states that the couple married on a different date, or lived at a different address, from what the forms say, the inconsistency invites questions. Inconsistent details can also flow into the Form 80 personal particulars and other forms if they are not checked together.

Each declaration is the maker's own evidence. It must be in their own words and must reflect their own knowledge. It is not the place to repeat the couple's relationship statement. The couple's statement remains their own account, and the declarations are independent confirmation from people who know them. If a declaration is prepared in another language, the Department's policy on family violence statutory declarations records that declarations must be in English, and that a person who helps a declarant prepare a declaration in that context must make a separate declaration stating that they provided assistance. The same caution is sensible for any partner visa statutory declaration.

When the relationship is married or de facto

The regulation accepts a declaration that the couple are in a married relationship or a de facto relationship. The declaration should describe the relationship that actually exists on the day it is made. A couple who are married should not have declarations describing them as only "together", and a couple who are not married should not have declarations calling them husband and wife. Getting this wrong does not only risk the validity test. It also produces evidence that contradicts the application. The de facto partner visa article covers what the law treats as a de facto relationship.

Common errors that cause invalidity or delay

The most common partner visa statutory declaration errors are using Form 888 statements in place of statutory declarations, using a maker who is not an eligible person, dating a declaration outside the 6-week window, failing to declare the relationship, and uploading the declarations after the application is lodged. Each of these can make the application invalid. Other errors do not affect validity but cause delay or doubt.

Errors that can make the application invalid

• Lodging two Form 888 statements and treating them as the two statutory declarations. Form 888 is a supporting statement and does not satisfy subparagraph 1124B(3)(e)(iii).
• Lodging only one partner visa statutory declaration. The regulation requires two.
• Using a maker who is a temporary visa holder, or a foreign national living overseas, rather than an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
• Using the sponsoring partner as one of the two makers.
• A partner visa statutory declaration made more than 6 weeks before the day the application is lodged.
• A declaration that describes the declarant's friendship with the couple but never declares that the applicant and partner are in a married or de facto relationship.
• Uploading the declarations after lodgement. They must be provided at the same time and place as the application.
• Failing to lodge the Form 40SP sponsorship with the application when section 48 applies, which is a separate validity requirement under subparagraph 1124B(3)(e)(ii).
• Lodging at all when the applicant has already been refused a partner visa since last entering Australia, which is barred by subparagraph 1124B(3)(e)(i).

Errors that cause delay or doubt

• A partner visa statutory declaration on a home-made template rather than the approved Commonwealth form.
• Missing signatures on some pages, or attachments that are not properly referred to and signed.
• A witness who is not on the approved list, or who did not hold the relevant position when witnessing.
• Video link execution where the witness did not see the declarant sign.
• Declarations that contradict the forms, the relationship statement or each other on basic facts.
• Declarations in a language other than English without an English version.

Several of these errors appear in applications that couples prepare themselves, often because guidance written for ordinary onshore applicants does not mention the section 48 rules. The Subclass 820 visa guide to requirements and documents, the Subclass 820 partner visa requirements guide and the onshore Subclass 820 visa explainer all deal with the standard onshore path. The partner visa statutory declaration rule is an extra layer for the section 48 group. Couples weighing whether to prepare the application themselves can read about a partner visa lawyer compared with doing it yourself. Couples who have already lodged and are worried about validity can read about hiring an immigration lawyer after lodging your own application and getting a second opinion from an immigration lawyer.

Section 48 applicants who arrived on a visitor visa

Many section 48 applicants first came to Australia as visitors, had a further application refused, and then formed or continued a relationship here. The tourist visa to partner visa guide explains the checks that apply before an onshore partner application is made. Where the earlier visa carried a no further stay condition, a separate barrier may apply, which is covered in the article on the Subclass 820 visa and condition 8503. These are distinct issues from the partner visa statutory declaration rule, and all of them must be checked before lodgement.

Other partner visa situations where statutory declarations matter

Statutory declarations also matter in partner visa cases outside section 48, most importantly in family violence claims under Division 1.5 of the Migration Regulations 1994, and wherever the Department or the Tribunal asks for evidence in declaration form. The section 48 partner visa statutory declaration rule is the one that affects validity at lodgement. The others affect how a claim is assessed.

Family violence claims

Where a partner relationship has ended and the applicant relies on the family violence provisions, the Department's policy states that, for a non-judicially determined claim of family violence under subregulation 1.23(9), the alleged victim must submit a statutory declaration in accordance with regulation 1.25, together with at least two prescribed documents. The policy records that the statutory declaration must be signed and witnessed by a person authorised to witness statutory declarations, that all attachments must be referred to in the declaration and witnessed on each page, that an unsigned statutory declaration is not regarded as substantially complying, and that statutory declarations must be in English. Our family violence partner visa lawyers act in these matters, and the article on what happens when a Subclass 820 relationship breaks down explains the wider rules.

Changes after lodgement

Statutory declarations are sometimes used to explain changes after the application is made, such as a change of address or a period living apart for work. A change in circumstances also has to be notified to the Department, which is explained in the article on Form 1022 and when to lodge it. A declaration explaining the change does not replace the notification.

Offshore and other partner visas

The section 48 rule concerns applications made in Australia. Applications for the offshore Subclass 309 partner visa and the Subclass 300 prospective marriage visa are lodged online and commonly include Form 888 statements, but the two-declaration rule in subparagraph 1124B(3)(e)(iii) belongs to the onshore Partner (Residence) class. A partner visa statutory declaration may still be useful offshore as evidence, but it is not a validity requirement there.

Requests from the Department

During processing the Department may ask for further information, sometimes in a form that the applicant chooses to provide by statutory declaration. A response to a natural justice letter under section 57 may also include declarations from people who can address the Department's concerns. In those situations the declarations go to the merits, not validity, and the content and credibility of each partner visa statutory declaration is what counts.

What Tribunal decisions show about statutory declarations in partner visa cases

Tribunal decisions show that statutory declarations from the couple's friends, family and community regularly form part of the evidence that the Tribunal considers in partner visa reviews. In each decision listed below, the Tribunal remitted the matter, which means it sent the matter back to the Department to reconsider. The descriptions below record only the issues reported in each decision's headnote.

• Lee (Migration) [2023] AATA 1821, Subclass 820: the reported issues were a genuine and continuing relationship, joint bank accounts, a residential tenancy agreement and supporting statutory declarations.
• Nguyen (Migration) [2022] AATA 3045, Subclass 820: the reported issues were a genuine and continuing relationship, joint company and property ownership, joint bank accounts and statutory declarations recognising the relationship.
• Mazhar (Migration) [2022] AATA 2703, Subclass 820: the reported issues were a genuine and continuing relationship, the financial, household and social aspects of the relationship and the nature of commitment, and further information and statutory declarations provided.
• TRAN (MIGRATION) [2026] ARTA 1912, Subclass 820: the reported issues were a genuine and continuing relationship, a valid marriage, the financial, household and social aspects of the marriage and the nature of commitment, and statutory declarations and supporting statements.
• Topcubasi (Migration) [2021] AATA 806, Subclass 820: the reported issues were a Federal Circuit Court remittal, a relationship that had ceased, a non-judicially determined claim of family violence, and statutory declarations.
• Manaloto (Migration) [2022] AATA 1935, Subclass 820: the reported issues were a relationship that had ceased, a non-judicially determined claim of family violence, statutory declarations by the applicant and specified persons, and the opinion of an independent expert taken as correct.

These decisions concern the merits of relationships and family violence claims, not the section 48 validity rule. They show that statutory declarations are taken seriously as evidence on review. They do not suggest that a missing partner visa statutory declaration can be supplied at review to cure an invalid application. The Partner Visa Refusals service page, the article on why Subclass 820 visas are refused and our guide to when you need a visa appeal lawyer explain the review pathway for refused applications. Review deadlines are short and strictly applied, so a refused applicant should act straight away.

How My Migration Lawyers handles a partner visa statutory declaration case

My Migration Lawyers handles a partner visa statutory declaration case by first confirming whether section 48 applies, then checking every validity requirement in paragraph 1124B(3)(e) against the client's documents before anything is lodged. The firm acts in many onshore partner matters where the applicant has had a visa refused or cancelled, deals with complex visa histories as a regular part of its work, and is capable of handling the section 48 pathway from first review to lodgement.

The work follows a set sequence.

• Visa history review. The firm reviews the applicant's visa history since their last entry to Australia, including refusals, cancellations, bridging visas and any travel on a bridging visa, to decide whether section 48 applies and whether subparagraph 1124B(3)(e)(i) bars a further onshore partner application.
• Pathway check. The firm checks Schedule 3 exposure and any other barriers, such as a no further stay condition, and advises the couple on whether a valid onshore application can be made.
• Declarant check. The firm confirms that each proposed maker of a partner visa statutory declaration is an Australian citizen, Australian permanent resident or eligible New Zealand citizen, and is not the partner.
• Execution guidance. The firm explains the three execution methods, the approved form and the approved witness rules, so that each declarant can make their declaration correctly.
• Content review. Each partner visa statutory declaration is the declarant's own evidence. The firm reviews the draft for the regulation's required content, identifies gaps and inconsistencies with the forms and the couple's relationship statement, and the declarant corrects and confirms their own words.
• Date control. The firm sets the lodgement date and checks that both declarations fall within the 6-week window before that date.
• Lodgement. The firm lodges the application with both declarations and the Form 40SP uploaded at the same time, and keeps a record of what was provided.

Weiwei Zhang, Principal Lawyer, leads the firm's partner visa practice. You can read more about My Migration Lawyers, learn about Weiwei Zhang, and see how the firm approaches matters as partner visa lawyers in Australia. The firm also explains when an immigration lawyer is needed for a partner visa and how to choose a partner visa lawyer in Australia.

Consultations are held by video, and My Migration Lawyers acts for couples across Australia, including clients of our partner visa lawyers in Sydney, Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra, Hobart and Parramatta. Couples comparing firms in their own city can also read the guides to choosing a partner visa lawyer in Sydney, Melbourne, Brisbane and Perth.

If the applicant has had a visa refused or cancelled and the couple are planning a partner application in Australia, the time to check the partner visa statutory declaration requirement is before lodgement, not after. The firm cannot promise any outcome, but it can make sure the application that is lodged is the application the law requires.

Book a Consultation with My Migration Lawyers to have your section 48 position and partner visa statutory declaration documents reviewed before you lodge. You can also call 1300 040 300.