Reapplying After an 820 Refusal

A second 820 application is usually possible, and that is exactly why it is dangerous. Partner visas are among the few classes a person caught by the section 48 bar may still apply for onshore, so the system will accept a fresh application, take the full charge again, and refuse it again if nothing has changed. Reapplying is a decision about evidence and cost, not about whether the door is open.

Can you apply again at all?

Start with section 48 of the Migration Act 1958. It applies to a non-citizen who is in Australia, does not hold a substantive visa, and who, after last entering Australia, was refused a visa (other than a bridging visa refusal or a refusal on character grounds under sections 501, 501A or 501B), or held a visa that was cancelled under one of the listed cancellation powers. Such a person may apply only for a visa of a class prescribed for the purposes of that section.

Regulation 2.12 of the Migration Regulations 1994 sets out those classes, and the first two entries are Partner (Temporary) (Class UK) — which contains the subclass 820 — and Partner (Residence) (Class BS), which contains the subclass 801. Protection visas and the bridging visa classes are also on the list.

Two things follow. The bar does not apply at all if you still hold a substantive visa, so someone refused while on a student or visitor visa that is still running is not barred. And even when it does apply, a partner visa remains available. See the section 48 bar.

Schedule 3 will now apply

If your first refusal left you without a substantive visa, the second application is made in a very different position from the first. Where the applicant does not hold a substantive visa at the time of application, the subclass 820 criteria require Schedule 3 criteria 3001, 3003 and 3004 to be satisfied unless the Minister is satisfied that there are compelling reasons for not applying them. A couple who sailed through this test the first time because the applicant held a student visa will be arguing compelling reasons the second time. Read Schedule 3 criteria before deciding anything.

A fresh application means a fresh charge

There is no discount for a repeat application and no credit for the first. Home Affairs states plainly that it will not refund the application fee if it refuses an application. A second 820 attracts the base application charge again, plus additional applicant charges for any children included. Police certificates are valid for 12 months from the date of issue for immigration purposes, and health assessment results for 12 months, so a second application usually means paying for both again. See 820 visa cost.

Against that, the Tribunal's review fee is a fraction of the visa application charge, and half is refunded if the decision is set aside or remitted. That arithmetic is why review is normally tried first — see ART deadlines and fees.

When a refusal blocks a later application: PIC 4020

A refusal under public interest criterion 4020 does more than end the first application. The subclass 820 requires the applicant to satisfy that criterion, which has two separate exclusion limbs:

• Three years. The Minister must be satisfied that, during the period starting three years before the new application was made and ending when it is decided, neither the applicant nor any member of their family unit has been refused a visa for failing the bogus-document or false-information limb.
• Ten years. A separate limb requires the applicant to satisfy the Minister as to their identity, with the same structure and a ten-year period.

The criterion allows the Minister to waive the bogus-document and false-information requirements and the three-year period, where satisfied that compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, justify granting the visa. The identity limb and its ten-year period are not in the waiver provision. If your refusal letter cites 4020, the exclusion period is the first thing to work out, because it governs whether a second application can succeed at all.

What has to be different for a second application to work

The Department will have the earlier file. A near-identical application produces a near-identical decision, faster. Before lodging again, be able to say what has changed:

• The ground of refusal is answered. If the first refusal turned on the relationship not being accepted, the second application needs evidence covering the period since, across the four statutory aspects — see relationship evidence.
• The inconsistencies are explained, in writing, by name and date, rather than buried under more documents.
• The validity problem is cured. A waiver granted, the statutory declarations in the correct form and made within six weeks of lodgement, the sponsor's documents included.
• A new legal basis exists. A registered relationship, a child of the relationship, or circumstances now capable of being compelling reasons under Schedule 3.
• Sponsorship is available. The sponsor must still be willing and approvable.

When the offshore 309 is the better option

The subclass 309 is the offshore equivalent of the 820. Schedule 1 requires the applicant to be outside Australia when the application is made, and the visa can be granted while the person is in or outside Australia. Because it is applied for offshore, neither the section 48 bar nor Schedule 3 is in play, which makes it the cleaner path for someone with no substantive visa, no waiver and no compelling reasons to argue.

It has its own costs. The couple are separated while it is processed. The 309 criteria still include public interest criterion 4020, so a 4020 exclusion period follows you offshore. And if the applicant has previously been in Australia, the 309 requires special return criteria 5001 and 5002 — 5002 prevents a grant within 12 months of removal from Australia unless compelling or compassionate circumstances justify it. Weigh the two at 820 vs 309.

If a review is still on foot

Section 48 applies to a person refused a visa whether or not the application has been finally determined, so a pending review does not lift the bar. More importantly, the Tribunal considers your relationship as at the date of its own decision, which is the single most valuable feature of the whole system for partner visa applicants. Withdrawing a review to lodge again trades that away for a fresh charge and a decision maker who has already refused you once. Sometimes it is the right trade. It is not a decision to make from a web page.

Where professional help changes the odds

The choice between review, a second application and an offshore application turns on facts that are easy to get wrong: whether you still hold a substantive visa, whether the refusal engaged 4020 and on which limb, whether Schedule 3 now bites, and what the exclusion periods do to the timing. An application or review prepared by a migration lawyer is more likely to succeed, largely because that analysis is done before any money is spent rather than after a second refusal.

What to do next: confirm the exact ground on your letter at why 820 visas are refused, then compare the cost and timing of review against a fresh application at appealing at the ART. If your visa has been cancelled rather than refused, read visa cancellation.

Keep reading

Appealing an 820 Refusal at the ART

How review of an 820 partner visa refusal works at the Administrative Review Tribunal: who can apply, the strict deadline, the fee, the hearing and the outcomes.

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ART Deadlines and Fees for Partner Visa Reviews

The time limit for applying to the ART after a partner visa refusal, how notification is counted, the review fee, the hardship reduction and the refunds.

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Ministerial Intervention After a Partner Visa Refusal

How ministerial intervention works after a partner visa refusal is affirmed by the ART: section 351, why the power is personal, non-compellable and rarely used.

Read the guide →