What Options Do I Have If the Tribunal Upholds My Refusal?

Can I challenge the Tribunal decision in court?

A Tribunal decision affirming a partner visa refusal can be challenged in court only by judicial review, and only on the ground that the decision involved a legal error. The court does not re-hear the evidence about the relationship. If judicial review succeeds, the case usually returns to the Tribunal to decide again. Our article on partner visa judicial review explains the grounds and the strict time limits.

Can I lodge a new partner visa application after the Tribunal refuses?

A new partner visa application can be lodged after the Tribunal refuses if the applicant still meets the requirements and is in the right place to apply. Section 48 of the Migration Act allows a person in Australia to apply for a partner visa after a refusal, but an applicant without a substantive visa must also meet the Schedule 3 criteria. An offshore Subclass 309 application is another route for some couples. Our article on reapplying for a partner visa after refusal explains how to address the earlier findings.

What is ministerial intervention after a partner visa refusal?

Ministerial intervention after a partner visa refusal is a request to the Minister to use the personal power in section 351 of the Migration Act to substitute a more favourable decision for the Tribunal's decision. The power is non-compellable, which means the Minister does not have to consider a request at all. Requests are usually reserved for unique or exceptional circumstances, and lodging one does not by itself keep a person lawful in Australia. The Minister's guidelines describe the kinds of circumstances that may be considered, such as strong compassionate factors or the interests of Australian citizen children. A request should be supported by evidence of those circumstances, not simply repeat the arguments the Tribunal has already rejected.

What happens to my bridging visa after the Tribunal decision?

A bridging visa linked to the partner visa application generally ceases a fixed period after the Tribunal affirms the refusal. Once it ceases, a person with no other visa becomes an unlawful non-citizen, which affects later applications and can lead to detention. Anyone planning a new application should act before the bridging visa ends. Our article on Schedule 3 criteria for partner visas explains why timing matters.

How do I choose between these options?

The choice between these options depends on why the Tribunal refused, whether the relationship continues, the applicant's location and visa status, and whether new evidence now exists. A refusal based on weak evidence of a continuing relationship is often better answered by a well-prepared new application than by court proceedings. Our article on partner visa refused appeal options compares the paths.

How does My Migration Lawyers help after the Tribunal upholds a refusal?

My Migration Lawyers reads the Tribunal's reasons closely to see whether the decision may involve legal error and whether the findings could be answered in a new application. The firm then advises on the options available, including a new application, Schedule 3 arguments or ministerial intervention where available, and the order and timing of each step. Couples can read about our partner visa refusals work and our Schedule 3 waivers work.