Australian Immigration Daily News

The Migration Amendment (Subclass 309 Applicant Review Rights) Regulations 2023 (the Regulations) amends the Migration Regulations 1994 (the Migration Regulations) to provide that the prescribed person eligible to seek merits review of a decision to refuse a Subclass 309 Partner (Provisional) visa application where the visa could be granted in Australia is the applicant rather than the sponsor.

The partner visa program permits Australian citizens, permanent residents or eligible New Zealand citizens to sponsor their partners to live in Australia. Applicants for a Subclass 309 (Partner (Provisional) visa must usually be outside Australia to apply for and be granted the visa. If the application is refused, the applicant’s sponsor has standing to seek merits review of the refusal decision by the Administrative Review Tribunal (AAT). Where persons are already in Australia on another visa and become the spouse or de-facto partner of an Australian partner sponsor, they may apply for and be granted a Subclass 820 Partner (Temporary) visa in Australia. Where Subclass 820 visa applications are refused, the applicants, themselves, have standing to seek merits review.

Under the Migration Amendment (2021 Measures No.1) Regulations 2021, COVID-19 concession provisions were inserted into the Migration Regulations to allow for the grant of a Subclass 309 visa in Australia, if the applicant was in Australia during the COVID-19 concession period to address that the visa applicant could not depart Australia during the travel restrictions. These regulations retained the position that standing to seek merits review of a refusal decision is held by the applicant’s sponsor, to align with the merits review rights of Subclass 309 applicants who were unaffected by COVID-19 concession provisions.

Source: Migration-Amendment-sc309-Review-Rights-Regulations-2023.pdf and Migration-Amendment-sc309-Review-Rights-Regulations-2023-explanatory-statement.pdf