Can I Apply for a Partner Visa If My Visa Was Cancelled?

Does a visa cancellation stop me applying for a partner visa?

A visa cancellation does not automatically stop a person applying for a partner visa, but it changes which application is possible and what must be proved. The answer depends on the provision used to cancel the visa, whether the person is still in Australia, whether they now hold a bridging visa or no visa at all, and whether review of the cancellation is still open. Our article on a partner visa after visa cancellation explains the common cancellation grounds and how each one affects a later application.

How does section 48 affect a partner visa after cancellation?

Section 48 of the Migration Act limits the visas a person can apply for in Australia after a visa has been cancelled under certain provisions, such as section 109 or section 116, while the person remains in Australia without a substantive visa. A partner visa is one of the visas the regulations still allow, so section 48 does not close the onshore path for a genuine couple. The applicant must, however, meet the extra requirements that apply to section 48 applicants, which are explained in our article on the section 48 bar.

What if I no longer hold a substantive visa after the cancellation?

A person who no longer holds a substantive visa after a cancellation must generally satisfy the Schedule 3 criteria to be granted a Subclass 820 partner visa. Schedule 3 looks at when the application was made, why the person was without a substantive visa and whether they substantially complied with their earlier visa conditions, and it can be set aside only where compelling reasons exist. A bridging visa is not a substantive visa for this purpose. The test is set out in our article on Schedule 3 criteria for a partner visa, and the firm's page on Schedule 3 waivers explains how compelling reasons are put to the Department.

Why is a section 501 cancellation different?

A section 501 cancellation is different because it is a character cancellation, and section 501E then prevents the person from applying in Australia for most visas, including a partner visa, while they remain in the migration zone. Outside Australia, the Subclass 309 requires an applicant who has been in Australia before to meet special return criterion 5001, which generally cannot be met while the section 501 cancellation stands. For this reason, the first question after a character cancellation is usually whether the cancellation itself can be revoked or reviewed. Our article on the partner visa and section 501 explains how the character test works.

Should I challenge the cancellation or apply for a partner visa?

The choice between challenging the cancellation and applying for a partner visa depends on the strength of the review, its deadline and the effect the cancellation would have on a new application. Review of many cancellation decisions is available at the Administrative Review Tribunal, but the time limit is short and strictly applied. Where the Tribunal sets a cancellation aside, some of the later barriers may fall away with it. Our article on partner visa cancellation review explains how review works in practice. The decision should be made before the review deadline passes, because the option cannot be revived afterwards.

How does My Migration Lawyers approach a partner visa after cancellation?

My Migration Lawyers starts with the cancellation decision itself, because the provision named in it decides whether section 48, Schedule 3, section 501E or a special return criterion applies. The firm then checks the review deadline, the person's current bridging visa and the relationship history, and advises on the order of steps before anything is lodged. Couples dealing with a cancellation can speak with our partner visa lawyers about the safest path.