General information only, not legal advice. Immigration law changes; contact Onside for advice about your circumstances.
Partner Visa after a Previous Visa Refusal or Cancellation
A relationship with an Australian citizen or permanent resident does not automatically guarantee that a Partner visa will be granted.
For many applicants, the straightforward question is whether they are genuinely married or in a de facto relationship. However, some Partner visa applications involve much more complicated immigration histories.
Previous visa refusals, visa cancellations, character concerns, sponsorship limitations, immigration breaches and other issues can affect whether an applicant is eligible for a Partner visa and how the application should be prepared.
At Onside Immigration Lawyers, we understand that every Partner visa application requires careful preparation, detailed evidence and consideration of the applicant’s individual circumstances. Our experienced immigration lawyers assist with Partner visa applications across a range of circumstances, including applications involving previous visa refusals, cancellations, character concerns, sponsorship issues or other immigration complexities
Can I apply for a Partner visa if I previously had a visa refused?
Possibly.
A previous visa refusal does not necessarily mean that you can never obtain a Partner visa. However, the circumstances surrounding the refusal need to be carefully considered.
For example, an applicant may previously have had a visa refused or cancelled for various reasons, such as non-compliance with prior visa conditions, insufficient evidence, character concerns, health issues or other public interest criteria.
Australian immigration law contains limitations on certain applications made in Australia where a person does not hold a substantive visa and has previously had a visa refused or cancelled. There are, however, important exceptions and special provisions that can apply to Partner visa applicants.
This is why it is important not to assume that a previous refusal automatically prevents a Partner visa application.
What if my visa was cancelled?
Visa cancellation can create significantly more complicated issues.
The reason for the cancellation is particularly important.
For example, there is a major difference between a cancellation relating to:
failure to comply with visa conditions;
providing incorrect information;
character concerns;
criminal convictions;
false or misleading information; or
other immigration compliance issues.
The applicant's current visa status, previous immigration history and the relevant provisions of the Migration Act all need to be considered before deciding how to proceed.
What if there are character concerns?
Character issues can be particularly serious.
Under section 501 of the Migration Act, a person may be refused a visa or have an existing visa cancelled on character grounds.
The Department considers a range of factors when assessing character, including criminal conduct and the circumstances surrounding the conduct. In character matters, considerations can also include the protection of the Australian community, the best interests of children in Australia, family relationships and the applicant's ties to Australia.
A person facing a character issue should obtain legal advice before simply lodging another visa application.
The correct strategy may involve responding to a Department notice, seeking review of a decision, addressing a cancellation, or preparing detailed submissions concerning the relevant character considerations. What if my Partner visa was already refused?
If a Partner visa has been refused, the first step is to understand why it was refused.
The refusal letter should be carefully reviewed to determine:
the legal basis for refusal;
whether the decision is reviewable;
the deadline for seeking review;
whether further evidence can address the concerns;
whether another visa application is possible; and
whether there are alternative migration pathways.
If a permanent Partner visa is refused, the applicant's temporary Partner visa position may also be affected. The Department specifically advises applicants to check their visa status following a refusal
Can my partner sponsor me if they have previously sponsored someone?
There can also be restrictions and limitations affecting Partner visa sponsorship.
The sponsorship history of the Australian partner should therefore be examined before the application is lodged.
It is important to consider:
whether the sponsor has previously sponsored another partner;
when previous sponsorships occurred;
whether sponsorship limitations apply;
whether there are circumstances permitting an exception;
whether there are character issues affecting the sponsor; and
whether the sponsor satisfies the applicable sponsorship requirements.
What if the relationship has ended?
A relationship breakdown does not always mean that a Partner visa pathway is automatically lost.
There are circumstances in which a Partner visa application or pathway may continue despite the relationship ending, including certain situations involving domestic and family violence, the death of the sponsoring partner, or where the couple has a child and relevant parental circumstances exist.
These provisions can be highly technical, and legal advice should be obtained before withdrawing an application or assuming that there is no further visa pathway.
Get advice before lodging a complex Partner visa application
A Partner visa application involving a previous refusal, cancellation, character concern, or a sponsorship limitation should not be treated like a standard application.
At Onside Immigration Lawyers, we can assess your immigration history, relationship circumstances and eligibility before determining the most appropriate strategy.
If you have previously had a visa refused or cancelled, or you have concerns about character or sponsorship, obtaining advice before lodging your Partner visa may help identify problems before they become more difficult to address at a later stage.