Can I Apply for a Partner Visa If I Am in Immigration Detention?

Can a person in immigration detention lodge a partner visa?

A person in immigration detention can lodge a partner visa only if the application is made within the period allowed by section 195 of the Migration Act after the person is told of their right to apply for a visa. That period is very short. Once it has passed, the detainee generally cannot apply for a partner visa while in detention, even if the relationship is genuine and the partner is an Australian citizen. Our page on Schedule 3 waivers explains the further criteria that apply to onshore applicants without a substantive visa.

What criteria apply to a partner visa lodged from detention?

A partner visa lodged from detention must meet all the usual criteria, including a genuine and continuing relationship, sponsorship requirements, health, character and the integrity requirement in PIC 4020. Because a detainee does not hold a substantive visa, the Schedule 3 criteria also apply, and they are waived only for compelling reasons. Our article on Schedule 3 criteria for partner visas explains what the Department expects, and our article on compelling reasons explains the waiver threshold.

Can the Minister grant a visa to someone in detention?

The Minister can grant a visa to someone in detention under section 195A of the Migration Act if the Minister thinks it is in the public interest. The power is personal and non-compellable, which means the Minister does not have to consider using it. A request should present the full circumstances, including the relationship, any Australian citizen children and the reasons the person cannot follow the ordinary visa process. It should not be treated as a reliable path.

Does a character issue affect a partner visa from detention?

A character issue often affects a partner visa from detention, because detention sometimes follows a visa cancellation on character grounds or a criminal matter. A person whose visa was cancelled under section 501 faces serious restrictions on later visa applications. Our articles on section 501 and partner visas and on a partner visa after visa cancellation explain these restrictions.

Is an offshore partner visa an option after removal or departure?

An offshore Subclass 309 partner visa can be an option after a person leaves Australia, but exclusion periods and earlier refusals or cancellations may affect it. A person who left Australia as an unlawful non-citizen, or who was removed or deported, may face exclusion periods or debts to the Commonwealth. Our page on the Subclass 309 visa explains the offshore pathway, and our article on immigration debt explains how detention and removal costs can affect later applications.

How does My Migration Lawyers act for partners of people in detention?

My Migration Lawyers works with the Australian partner first, because the detainee's access to communication is often limited and the timing under section 195 is critical. The firm establishes whether any application window remains, which visas can still be applied for, and whether a ministerial request or an offshore pathway is more realistic. The firm acts by video and email from its Sydney office. Partners can speak with our partner visa lawyers as soon as detention occurs.