The Migration Amendment (Subclass 309 Applicant Review Rights) Regulations 2023 clarify that Subclass 309 visa applicants, rather than sponsors, can seek merits review for visa refusals in Australia.
This article provides an overview of the partner visa program, COVID-19 concession provisions, and implications of the new Regulations. Typically, Subclass 309 visa applicants must be outside of Australia, but those in Australia on another visa can apply for a Subclass 820 visa. If their Subclass 820 visa application is refused, applicants now have the right to seek merits review for a fair and transparent migration decision-making process.
Impact of COVID-19 Concession Provisions:
In response to the COVID-19 pandemic, the Migration Amendment (2021 Measures No.1) Regulations introduced concession provisions into the Migration Regulations. These provisions allowed for the grant of a Subclass 309 visa in Australia, even if the applicant was in Australia during the COVID-19 concession period and could not depart due to travel restrictions. However, the Regulations retained the previous position that standing to seek merits review of a refusal decision is held by the applicant’s sponsor, aligning with the merits review rights of Subclass 309 applicants who were unaffected by the COVID-19 concession provisions.
Amendments in the Regulations:
To provide clarity in the review rights for Subclass 309 visa applicants, the Regulations now specify that the applicant, rather than the sponsor, is eligible to seek merits review of a decision to refuse the visa application, where the visa could be granted in Australia. This means that if a Subclass 309 visa application is refused and the applicant is in Australia during the COVID-19 concession period or is applying for a Subclass 820 visa, they have the right to seek merits review of the refusal decision by the Administrative Review Tribunal (AAT) themselves, rather than relying on the sponsor.
Implications of the Regulations:
The amendments in the Regulations have significant implications for Subclass 309 visa applicants and their sponsors. By allowing the applicants themselves to seek merits review of a refusal decision, the Regulations empower the applicants to have direct control over their visa application process and review rights. This aligns with the general principles of procedural fairness and transparency in migration decision-making, ensuring that applicants have access to a fair and impartial review process. Furthermore, the Regulations also bring consistency in the review rights of Subclass 309 applicants, regardless of whether they were affected by the COVID-19 concession provisions or not.
Conclusion:
The Migration Amendment (Subclass 309 Applicant Review Rights) Regulations 2023 provide much-needed clarity in the Migration Regulations regarding the review rights of Subclass 309 Partner (Provisional) visa applicants in Australia. By specifying that the applicant, rather than the sponsor, is eligible to seek merits review of a refusal decision, the Regulations ensure that applicants have direct control over their visa application process and review rights. This promotes procedural fairness and transparency in migration decision-making and brings consistency to the review rights of Subclass 309 applicants. As such, these Regulations are a positive step towards ensuring a fair and transparent process for partner visa applicants in Australia.
Let NB Migration Law be your trusted partner in obtaining the Onshore Partner Visa (Subclass 820/801) in Australia. Our experienced team of migration experts can guide you through the complex application process, provide tailored migration advice, and ensure you have the best chance of success in obtaining both temporary and permanent partner visas.
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