Partner Visa Refusal - What to do and navigating your next steps
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Yes, it can happen - Some Partner visa applications are refused by the Department of Home Affairs, and receiving a refusal for your partner visa application can be a distressing experience, especially when you’ve invested so much time, effort, and hope into the process.
According to the Department of Home Affairs, in the 2018–2019 financial year, there were 1,934 refusals for Partner (Provisional) visas (subclass 309) and 2,751 refusals for Partner visas (subclass 801).
In the 2020–2021 period, 1,273 Partner (Provisional) visa applications were refused, and the Department of Home Affairs has not yet released specific refusal statistics for Partner visas in the 2021–2022 financial year.
The refusal rates for Partner visas can vary based on factors such as the completeness of the application, the quality of supporting evidence, and the applicant's satisfaction of the legislative and regulatory requirements for the grant of a Partner visa. Common reasons for refusal of a Partner visa application include:
Insufficient Evidence of Relationship: A lack of compelling evidence demonstrating the genuineness and continuity of your relationship;
Failure to Meet Health or Character Requirements: Not meeting the necessary health standards or having a criminal history that does not meet the requisite character criterion;
False or Misleading Information: Errors or omissions in your application, such as missing documents or incorrect information, as well as the provision of bogus documents or information;
Insufficient Compelling Reasons: A lack of compelling reasons in your case to waive Schedule 3 criterion (where you did not hold a substantive visa at the time of lodgement); and/or
Insufficient Evidence of Family Violence: A lack of evidence to demonstrate that you experienced family violence perpetrated by your Sponsor during your relationship (i.e. where you are pursuing your Partner visa application on family violence grounds after your relationship ends).
-amongst other reasons.
Whether you are separated from your loved one, facing uncertainty, or simply trying to understand your options, it is important to know that all is not lost.
There are steps you can take to challenge a refusal and keep your hopes for reunification alive, including lodging an application for review with the Administrative Review Tribunal to essentially “appeal” the refusal of your Partner visa application.
How can you “appeal” the refusal of a Partner visa application?
Most Partner visa applicants are able to apply to the Administrative Review Tribunal (formerly known as the Administrative Appeals Tribunal) for review of their Partner visa application. The Administrative Review Tribunal replaced the Administrative Appeals Tribunal on 14 October 2024, with aims to enhance the efficiency, accessibility, and independence of Australia's administrative review system.
This is known as merits review, which is the process of reconsidering a decision made by the Department of Home Affairs based on its merits (i.e. by looking at the facts of the case and applying the relevant laws and regulations). It is more commonly referred to as “appealing” a visa refusal, although such a classification of the merits review process is technically inaccurate.
The review application process in the Migration and Refugee Division of the Administrative Review Tribunal generally involves several key steps:
Step 1: Lodgement of review application
The current review application fee payable to the Administrative Review Tribunal is AUD$3,496.00, and review applicants who can demonstrate financial hardship may be eligible for 50% concession.
An application for review must be lodged within the prescribed time limits, which will depend on the individual circumstances of each case.
An application for review must be lodged by a person who has standing to apply for review, which will depend on the individual circumstances of each case, and this may not necessarily be the visa applicant.
An application for review must be lodged through one of the prescribed methods of lodgement, i.e. online, by email, by post or in person.
Step 2: Acknowledgement of valid review application
Some time after the application for review has been lodged with the Administrative Review Tribunal, the Tribunal will issue a formal acknowledgement of the review application.
If the review application is found to be invalid, i.e. where it was lodged outside of the prescribed time limits or lodged a person who does not have standing to apply for review in the case, the Tribunal will generally inform the review applicant of this finding and advise that the Tribunal does not have jurisdiction to review the application.
Step 3: Assessment of review application
During the processing of the review application, the Administrative Review Tribunal (through its registry) may request information from the review applicant and/or invite the review applicant to comment on certain information for the assessment of the review application.
The Administrative Review Tribunal may also invite the review applicant to attend a hearing of the review application, and the review applicant may also have the opportunity to arrange for witnesses to provide further oral and/or written evidence.
Step 4: Notification of outcome in review application
Shortly after a Member of the Administrative Review Tribunal has made a decision in an application for review, the review applicant will be notified in writing about the decision that has been made.
Where the review application has been successful, the Tribunal will generally remit the application to the Department of Home Affairs for reconsideration, with a direction that the review applicant satisfies certain criterion for the Partner visa. This is because the Tribunal does not have the power to grant someone a visa, although it may have authority to approve a nomination (e.g. where an employer who is sponsoring an overseas worker for an employer-sponsored visa applies for review of a refused nomination application).
If the review application is unsuccessful, the Tribunal will generally affirm the refusal of the Partner visa application, following which the review applicant may have an opportunity to apply for judicial review to the Federal Circuit and Family Court of Australia and/or Federal Court of Australia.
Unlike merits review before the Administrative Review Tribunal, judicial review before the Courts is concerned about the legality of the decision-making process taken by the Administrative Review Tribunal, and will not revisit the merits or facts of the case to determine whether the correct decision was made. Instead, the Court may examine how the Tribunal made its decision, including whether the Tribunal followed the correct legal procedures with procedural fairness, whether it acted within its powers and/or whether it made a decision that was not unreasonable or irrational under the law.
Can the refusal of my Partner visa be “overturned” by the Administrative Review Tribunal?
The majority of Partner visa refusals are actually “overturned” by the Administrative Appeals Tribunal and remitted to the Department of Home Affairs for reconsideration, following which they are generally granted by the Department as a matter of priority.
In fact, statistics released by the Administrative Appeals Tribunal for the 2023-24 financial year indicate that more than 50% of review applications associated with Partner (Subclass 820/801) visa applications, Partner (Subclass 309/100) visa applications and Prospective Marriage (Subclass 300) visa applications are generally successful at the Tribunal, and are ultimately remitted to the Department for reconsideration and grant.
More recently, for the period of 14 October 2024 to 31 December 2024, statistics released by the new Administrative Review Tribunal show that:
65% of Partner (Subclass 820) visa applications were successfully remitted to the Department for reconsideration, and only 22% of Partner (Subclass 820) visa applications had their refusal outcomes affirmed by the Tribunal. The remaining 13% of review applications are comprised of review applications which were withdrawn, as well as review applications lodged outside of the prescribed time limit or which were not accompanied by the requisite review application fee, which the Department does not have jurisdiction to consider.
69% of Partner (Subclass 309) visa applications were successfully remitted to the Department for consideration, and only 19% of Partner (Subclass 309) visa applications had their refusal outcomes affirmed by the Tribunal. The remaining 12% of review applications were withdrawn.
31% of Partner (Subclass 801) visa applications were successfully remitted to the Department for reconsideration, and 69% of Partner (Subclass 801) visa applications had their refusal outcomes affirmed by the Department.
67% of Partner (Subclass 100) visa applications were successfully remitted to the Department for reconsideration, and 22% of Partner (Subclass 100) visa applications had their refusal outcomes affirmed by the Department. the remaining 11% of review applications were withdrawn.
Nonetheless, the prospects and outcome in each Partner visa application may vary from case to case, and may ultimately be dictated by factors such as:
the individual circumstances in each case;
the strength of the evidence in each case; and
further developments that occur during the processing of the review application.
How do I increase my chances of success for my Partner visa application at the Administrative Review Tribunal?
Your application for review is an opportunity to show the Administrative Review Tribunal that your Partner visa application should not have been refused, and that you satisfy all relevant legal requirements for the grant of a Partner visa, so as to increase the chances of your Partner visa application being remitted to the Department of Home Affairs for reconsideration.
The exact information and documentation which should be provided to the Administrative Review Tribunal in support of the application for review will depend on the individual circumstances of each case, including the reasons for refusal of the Partner visa application. For instance, if your Partner visa application was refused because the Department was not satisfied that you are in a genuine and long-term de facto or married relationship, it would be important to provide as much relationship evidence as possible which substantiate the four (4) aspects of your relationship. On the other hand, if you are pursuing your Partner visa application on family violence grounds, it would be important to not only provide the evidence of family violence perpetrated against you in the correct form prescribed by the Migration Regulations 1994 (Cth), but also provide as much relationship evidence as possible to demonstrate that you suffered family violence perpetrated by your sponsor prior to the cessation of your relationship.
Notwithstanding the above information, it is important to note that the Administrative Review Tribunal will conduct a de novo assessment of each review application, which means that the Tribunal will review the case entirely anew, without being bound by the original decision made by a delegate of the Department of Home Affairs. While this means that the Tribunal can “overturn” the refusal of your Partner visa application where it does not agree with the original decision maker’s reasons for refusing your Partner visa application, it also means that the Tribunal can still uphold the refusal of your Partner visa application on different grounds which were not considered by the Department. For example, if the Department of Home Affairs refused your visa application based your failure to demonstrate a genuine relationship between you and your sponsor, the Tribunal might agree that the visa should be refused but for a different reason, such as the provision of false or misleading information.
At Inclusive Migration, our immigration lawyers work closely with Partner visa applicants and their sponsors to review all the information and documentation that was provided to the Department and specific findings which were made in the Department’s decision to refuse the Partner visa application, so as to:
Provide additional supporting documents including additional relationship evidence;
Clarify discrepancies and/or misunderstandings in relation to adverse findings made by the Department of Home Affairs or any additional adverse findings which could be made by the Administrative Review Tribunal based on information in their file;
Consider and advise about the Partner visa applicant and sponsor’s next steps, including how they may strengthen their case, and work out a “Plan B” as a part of long-term migration strategy; and
Represent them at the hearing of their review application and advocate on their behalf, including through oral and written submissions at various stages of the review application process.
Our immigration lawyers tailor our advice and approach to the individual circumstances of each case, as the key issues and points of contention are likely to vary from case to case. While the review application process may be challenging, you can successfully navigate the refusal of a Partner visa application and go on to secure your Partner visa and obtain permanent residency in Australia.
How long will it take for a decision to be made in my application for review at the Administrative Review Tribunal?
While the Administrative Review Tribunal aims to reduce processing times for general applications in the Migration and Refugee Division, it has taken on the outstanding backlog and caseload of review applications from the previous Administrative Appeals Tribunal, and does not presently publish any processing times.
It may be presumed that applications for review in relation to a refused Partner visa application may be finalised in approximately 1,249 to 1,877 days, as this is the estimated processing time the former Administrative Appeals Tribunal took to make a decision in the Partner case category from 14 April 2024 to 13 October 2024.
Nonetheless, the Administrative Review Tribunal cannot guarantee that they will finalise any individual review of the same case category within these timeframes,, and total processing times may ultimately vary from case to case. For instance, processing times may necessarily be longer where the Tribunal requests additional information during the assessment of a review application and/or finds it necessary to hold a second hearing of a review application prior to making a decision on the application for review.
Where can I get help with the refusal of my Partner visa application?
Support in your personal life
The refusal of your Partner visa application can feel isolating and emotionally draining, particularly when it impacts your relationship with your sponsor. It is important to reach out to friends, family, or support groups for emotional assistance during this challenging time, so that you find comfort and encouragement while navigating your next steps.
Additionally, it is essential that you and your sponsor keep each other informed and involved while you consider your next steps after the refusal of your Partner visa application. Whether you and your sponsor are in Australia or abroad, your mutual support and understanding can help you both get through the situation together, and focus on taking meaningful action and steps towards resolving your immigration matters.
Legal and professional support
At Inclusive Migration, we are committed to helping you navigate the complexities of the Australian migration system with care and compassion. Our team of experienced immigration lawyers is here to support you through each step of the process, ensuring you have the best possible chance of achieving a successful outcome. We understand that the refusal of a partner visa application can be devastating, and want you not only support you but also get you back on a pathway to success and obtaining permanent residency in Australia.
Through our legal advice, we will help you understand the reason(s) for the refusal of your Partner visa application, and help you take timely action to improve your chances of success. With our support, you will have an opportunity to challenge the refusal of your Partner visa application and present your case with confidence.
If you have received a partner visa refusal or have any questions about the review process, contact us for a confidential consultation and let us help you take the next steps in your inclusive migration journey. You can contact us by email at info@inclusivemigration.com.au, through our contact form or by sending us a message on WhatsApp. We are here to listen, advise, and guide in your migration journey you with respect and understanding, and hope we will be able to assist you.
