What evidence the ART looks at when a partner visa is refused

A partner visa refusal appeal at the Administrative Review Tribunal (ART) is a fresh decision on fresh evidence, assessed as the relationship stands on the date the Tribunal decides. That feature explains why so many refusals are set aside: evidence that was thin at application can be rebuilt, and the Tribunal must consider it.

Particular evidence changes the outcome of a partner visa ART appeal, it carries weight for identifiable reasons, and applicants still lose at identifiable points despite a genuine relationship.

Merits review means the Tribunal decides on today’s evidence

When the Department of Home Affairs refuses a subclass 820/801 or 309/100 application, review of that decision sits with the ART. The Tribunal stands in the position of the original decision-maker and makes the correct or preferable decision on the material before it. It is not confined to the documents the case officer had.

Relationships continue while the file sits. By the time the matter reaches the Tribunal, a couple may have a joint lease, a shared mortgage, a child, years of combined finances and a settled social life that did not exist at lodgement. All of that is admissible.

The Tribunal must also give you a fair opportunity to answer the issues that decide the case. Where a decision turns on particular concerns, the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 confirmed that the applicant must be given a real chance to address those specific issues. Identify precisely why the Department refused the application and direct the new evidence at that reason, rather than submitting a generic bundle.

The four matters that decide a partner visa

Most partner visas are refused on one finding: that the relationship is not genuine and continuing. That assessment is governed by regulation 1.15A of the Migration Regulations 1994, which directs the decision-maker to consider four categories of evidence. An appeal is built on getting the evidence right across all four.

The four matters are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the couple’s commitment to each other. A perfect score in every category is not required. In He v Minister for Immigration and Border Protection [2017] FCAFC 206, the Full Federal Court held that the decision-maker must consider all the circumstances, including the four matters, and must make a finding on each of the listed matters, even if the finding is that no conclusion can be reached on it; leaving one out can be a jurisdictional error. The overall conclusion remains a single evaluative judgment, so a weakness in one area does not on its own defeat the application.

Two consequences follow for preparation. Weakness in one category can be offset by strength in others, so a couple who keep some finances separate for cultural or practical reasons can still succeed if the household, social and commitment evidence is strong. And no category can be ignored because it is inconvenient. If the refusal criticised the financial evidence, fresh, dated, primary documents on the finances need to carry the appeal.

Financial aspects

Joint bank accounts with real transaction history, shared liabilities such as a lease or loan, jointly held assets, and evidence of how you pool income and share expenses. Bank statements showing mutual use over time carry far more weight than a single account opened the week before the hearing.

Nature of the household

Who lives where, how domestic responsibilities are shared, and mail addressed to both of you at the same residence. A lease or ownership document in both names, utility accounts and correspondence spanning the relevant period all speak to a shared life.

Social aspects

Recognition of the relationship by others. Statutory declarations from family and friends who know the relationship first-hand, joint invitations, membership of shared organisations, and photographs across time and events. Declarations should say how the person knows you and what they have observed, rather than following a formula.

Nature of the commitment

The couple’s own account of their history, how they support each other, knowledge of each other’s circumstances, and the duration and exclusivity of the relationship. Consistent, detailed personal statements from both partners matter here.

When Schedule 3 was the real problem

Some onshore partner refusals have nothing to do with the relationship. They turn on Schedule 3 criteria, which apply where the applicant did not hold a substantive visa at lodgement. The waiver requires compelling reasons not to apply those criteria.

The timing of that assessment is decisive. In Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, the Full Federal Court held that compelling reasons are assessed as at the date of decision, not only as at the date of application. Events after lodgement, such as the birth of a child, a partner’s serious illness or hardship that has since developed, are therefore relevant to the waiver on review.

The Tribunal does apply the waiver where the relationship is genuine and the compelling reasons are established. In 1824867 (Migration) [2023] AATA 1111, a subclass 820 refusal was set aside where the relationship was found genuine and continuing and a Schedule 3 waiver was applied. If your refusal cited Schedule 3, the appeal needs two distinct evidence streams: one proving the relationship, and one establishing compelling reasons as they stand now.

When the refusal involved a false document

A different problem arises where the Department refused under Public Interest Criterion 4020, which deals with false or misleading documents and information. Fresh relationship evidence alone will not save the application, because the criterion is not concerned with whether the relationship is real.

In Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42, the Full Federal Court confirmed that PIC 4020 applies regardless of whether the applicant knew a document or information was false. The test is objective falsity. A genuine relationship does not cure a bogus document. If PIC 4020 is in play, the appeal must confront the specific document, address whether it is in fact false and, where relevant, engage the limited grounds on which the criterion can be waived. This is a narrow and technical path, and genuine couples often fail on it without careful legal preparation.

How to present evidence the Tribunal can act on

Volume is not the goal. Relevance, dating and coverage are.

Read the refusal decision and map every concern. The Department’s decision record states its reasons, and each reason is a target. Evidence that does not answer a stated concern adds bulk without adding weight.

Prefer primary, contemporaneous documents over reconstructed ones. A joint account with two years of ordinary transactions proves more than a set of screenshots taken last week. Where you rely on statutory declarations, make them specific and first-hand.

Cover the period continuously, not only the beginning and the end. The Tribunal is assessing a continuing relationship. Gaps invite questions, and questions the Tribunal did not put to you can, on later court review, become a problem in themselves.

Because the ART decides on the evidence as it stands at the date of decision, a case refused on thin material can succeed on a properly built one. Visa Plan Lawyers advises couples on partner visa refusals and prepares the evidence and submissions that address the stated reason for refusal. To discuss your appeal, visit our partner visas page.

General information only, current at the date shown. It is not legal advice on your situation. To get advice on your matter, book a consultation.