How Home Affairs Policy (PAM3) Guides Partner Visa Decisions

PAM3 stands for Procedures Advice Manual 3, the Department of Home Affairs' internal guidance to the officers who decide visa applications. It explains how the Department reads particular criteria, what evidence it expects to see and how it approaches recurring situations. It is not legislation, it does not bind a decision-maker the way the Migration Act 1958 and the Migration Regulations 1994 do, and it is not published in full where the public can read it. This page explains what it is worth and what it is not.

Where policy sits in the hierarchy

There are four layers, and only the first two are law.

1. The Migration Act 1958. The statute. Section 65 requires the Minister to grant a visa if satisfied the criteria are met, and to refuse it if not.
2. The Migration Regulations 1994. Delegated legislation made under the Act, containing the subclasses, criteria and schedules. Both sit on the Federal Register of Legislation.
3. Ministerial directions. Made under section 499 of the Act. These are binding — the Act says a person or body "must comply with a direction" — but a direction cannot be inconsistent with the Act or the Regulations, and directions are tabled in the Parliament. Direction 117 on family visa processing priorities is the one that affects partner applications.
4. Departmental policy, including PAM3. Internal guidance. Not made under a power to make law, not tabled, not binding on the Tribunal, and not binding on a delegate in the way a statute is. The structure is set out in full on the law behind the partner visa.

What a delegate must actually do

A case officer deciding an 820 application is a delegate of the Minister exercising the power in section 65. Their task is to be satisfied, or not satisfied, that the criteria in the subclass 820 regulations are met. They apply the Act and the Regulations to the facts before them.

Policy can properly help with that. Where a criterion turns on the Minister being satisfied of something — that there are "compelling reasons" for not applying the Schedule 3 criteria, or that a relationship is genuine and continuing — the statute does not define the standard, and consistency across thousands of decisions is a legitimate aim. Guidance on what factors the Department usually regards as relevant serves that aim.

What a delegate may not do is treat policy as if it were the rule. A decision-maker who has a discretion must genuinely exercise it in the case in front of them; applying a policy as though it removed the discretion is an error, described in administrative law as fettering the discretion. In practice that means policy may never be used to add a criterion the Regulations do not contain, to remove one they do contain, or to convert a matter the Minister "may" consider into a mandatory requirement.

How policy shows up in a decision record

You will rarely see the manual itself. You will see its footprint.

• Requests for information. The list of documents a case officer asks for, and the way the request is phrased, usually tracks departmental guidance rather than the words of the Regulations. This is why the Department's published checklists and its officers' requests line up so closely with the four matters in regulations 1.15A and 1.09A.
• The structure of the reasons. A refusal record often works through the four relationship matters in order, with a heading for each, because that is how the assessment is organised internally.
• Explicit references. Reasons sometimes say that "departmental policy" provides something, or refer to a PAM3 chapter by name, when explaining how a discretionary element was approached.
• Natural justice letters. Where adverse information has to be put to an applicant, the process follows the Act, but the framing of what the officer regards as the problem often reflects guidance.

If you receive a decision that relies on policy, read it for one thing in particular: whether the officer treated the policy as a consideration or as a rule. A refusal that reads as though a guideline had been applied automatically, without engaging with your circumstances, is a different kind of problem from a refusal that simply weighs your evidence differently than you do. See why 820 visas are refused.

How the Tribunal treats policy

On merits review the Administrative Review Tribunal stands in the place of the original decision-maker and makes the correct or preferable decision on the material before it. That means it applies the Migration Act and the Migration Regulations, not the Department's manual.

The Tribunal may have regard to lawful departmental policy, and it commonly does, because consistency in administrative decision-making has value. But it is not obliged to follow it, it will not follow it where doing so would be inconsistent with the legislation, and it decides for itself whether it is satisfied of a criterion. Nor does the Tribunal's own guidance material have legislative force. The practical consequence for an applicant is that an argument at review built entirely on "the Department's policy says" is weaker than one built on the words of the criterion. See appealing at the ART.

Can you get hold of it?

Only indirectly. There is no free public register for departmental policy equivalent to the Federal Register of Legislation, and the Department's website publishes guidance for applicants rather than the manual its officers use. Two routes exist in principle: commercial legal publishers reproduce policy material under licence for subscribers, and documents held by an agency can be sought under the Commonwealth freedom of information scheme, which the Office of the Australian Information Commissioner administers. Neither is quick, and material obtained either way may be out of date.

For most applicants the better use of time is the legislation, which is free, authoritative and current, together with the Department's own published pages. The evidence pages of this guide are organised around the four matters in the Regulations for that reason — start at relationship evidence.

This is one area where an Australian migration lawyer has a genuine informational advantage: they work with current policy material daily and know where the Department's reading of a criterion differs from its plain words. Applications and reviews prepared with that help are more likely to succeed, though no one can promise an outcome.

What to do next

Treat policy as a guide to expectations and the legislation as the test. Read the subclass 820 regulations for the criteria themselves. If a decision has already been made in your case and the reasons refer to policy, take that document to appealing at the ART and check your deadline before anything else.

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