Who Must Apply for Review of an Offshore Spouse Visa Refusal?

Does the sponsor or the applicant apply for review of a Subclass 309 refusal?

The applicant, not the sponsor, applies for review of a Subclass 309 refusal. Section 338(9) of the Migration Act and regulations 4.02(4)(saa) and 4.02(5)(raa) of the Migration Regulations make the visa applicant the person who applies to the Administrative Review Tribunal, in their own name, from wherever they are. Older guidance that says the sponsor must lodge the review is out of date. Our page on the Subclass 309 visa explains the offshore pathway.

What role does the Australian sponsor play in the review?

The Australian sponsor plays a central role in the review even though the sponsor does not lodge it. The sponsor usually gives a statement and oral evidence about the relationship, provides financial and other documents, and attends the Tribunal hearing. Where the refusal raised concerns about the sponsor, the sponsor's evidence may be decisive. Our article on ART evidence for a partner visa explains what evidence helps.

Can the applicant take part in the hearing from overseas?

An applicant overseas can usually take part in the Tribunal hearing by video or telephone if the Tribunal arranges it, while the sponsor may attend in Australia. The hearing invitation sets out the arrangements. Applicants should give the Tribunal reliable contact details and be ready to give evidence across time zones. Our article on the partner visa ART hearing explains what happens on the day.

What happens if the wrong person applies for review?

If the wrong person applies for review, the review application may not be valid, and by the time the error is found the time limit may have passed. This is one of the most serious avoidable mistakes in offshore partner visa matters. The review applicant's name, the decision being reviewed and the date of notification should be checked against the refusal letter before lodging. The Tribunal's application form and any required fee must also be completed correctly, because an incomplete application can be treated as invalid. Where the sponsor manages the paperwork for a partner overseas, the sponsor should confirm that the form clearly identifies the visa applicant as the person seeking review.

Is review always the best response to an offshore refusal?

Review is not always the best response to an offshore refusal. Some couples are better served by a new Subclass 309 application with stronger evidence, particularly where the refusal reason can be fixed quickly and the applicant has no other visa issues. Our article on partner visa appeal versus reapplication and our article on offshore partner visas explain the choices.

How does My Migration Lawyers act on an offshore spouse visa review?

My Migration Lawyers lodges the review in the applicant's name, deals with the Australian sponsor as the main point of contact where the couple prefer, and keeps both partners informed by video and email across time zones. The firm then prepares the evidence and submissions that answer the specific refusal findings and attends the hearing. Sponsors can read about our partner visa refusals work.