NEW Merits Review Allowance for Partner (Subclass 309) Visa Applicants
The Partner (subclasses 309/100) and Partner (subclasses 820/801) visas allow for the partner of an Australian citizen, permanent resident, or eligible New Zealand citizen to come work and stay in Australia.
The difference between these visas is that the Partner (subclasses 309/100) visa must, generally, be applied for and granted while the applicant is offshore, and the Partner (subclasses 820/801) visa is applied for and granted while the applicant is onshore.
While these visas are different in this way, they are substantially similar in the requirements that must be satisfied. One of these requirements is that the applicant must have an approved sponsor. For these visas, the sponsor is the applicant’s Australian Citizen or permanent resident partner.
However, due to the COVID-19 pandemic, several concessions, some relating to the sponsorship requirements, were made for applicants for the Partner (subclass 309) visa.
COVID-19 Concessions
In recognition of the international border closures caused by COVID-19, the Migration Regulations 1994 (Cth) (‘the Regulations’) were amended by the Migration Amendment (2021 Measures No. 1) Regulations 2021 on 27 February 2021 to permit Partner (subclass 309) visa applicants to be granted their visas if they were unable to depart Australia.
If the applicant’s visa was granted after 26 February 2021 and the application was made during the concession period (on or after 1 February 2020) then the visa could be granted onshore, whereas previously the applicant was required to be offshore in accordance with subclause 309.412(1) of the Regulations.
Seeking Merits Review for Partner Visa Applicants
As previously discussed, these Partner visa applications require the applicant’s partner to be their sponsor. However, there are certain circumstances in which this requirement can be met without the sponsoring partner, namely:
If the sponsor has died; or
If the applicant or a member of the applicant’s or sponsor’s family unit has suffered family violence committed by the sponsoring partner; or
If the applicant has custody, joint custody, access to, a residence order, or a contact order in relation to at least 1 child in respect of whom the sponsoring partner also has custody or access rights to.
Previously, Partner (subclass 309) visa applicants did not have access to this provision. It was recognized that if Partner (subclass 309) visa applications could now be granted onshore these applicants needed to have access to this provision. Therefore, on 20 August 2022, the Migration Amendment (Subclass 100 and 309 Visas) Regulations 2022 amended the Regulations to allow these applicants to do so.
However, an issue still remained for the applicants who were now able to be granted a Partner (subclass 309) visa onshore and had taken advantage of this provision. That is, if a Partner (subclass 309) visa application was refused, only the sponsor would be able to apply to the Administrative Appeals Tribunal (‘AAT’) for merits review of the decision.
In these circumstances, it would be difficult, if not impossible for the applicant to request that their sponsor take on this obligation for them (particularly in circumstances where the sponsor has died).
The Legislative Changes and Their Purpose for Partner (Subclass 309) Visa
Therefore, the Migration Amendment (Subclass 309 Applicant Review Rights) Regulations 2023, which came into force on 04 April 2023, amend the Regulations to ensure that Partner (subclass 309) visa applicants, who are eligible to be granted this visa onshore, have the right to seek merits review in their own right at the AAT.
These changes bring the offshore cohort into line with the onshore partner visa applicants and give individuals in these circumstances renewed hope that not all is lost if their relationship breaks down or is no longer in existence due to the specified circumstances, which are outside of their control.
How Can Agape Henry Crux Assist
Contact us if you require any assistance in relation to the refusal of a Partner visa application.
At Agape Henry Crux, our Accredited Specialist(s) Immigration Lawyers and our team of immigration lawyers and migration agents are specialised in handling highly complex matters. You may schedule an appointment with one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or email us at info@ahclawyers.com.
We speak fluent English, Korean, Japanese, Mandarin, and Malay. If this isn’t your language, we can also help you arrange an interpreter.
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