This is one of the questions I am asked most often by viewers of the program, and the precise answer determines the fate of a great many refused partner applications. Negin Safaei, Australian migration lawyer and MARA-registered migration agent (MARN 1791573), sets out in this article — step by step, and grounded in the text of the Migration Act 1958 and the Migration Regulations 1994 — the legal framework governing the right of review before the Administrative Review Tribunal (ART). The key point is that the statutory test is not “where the visa application was lodged”; the test is which paragraph of section 338 of the Migration Act the refusal decision falls within, and “who” holds the right to lodge the review application.
The short answer
Yes. The refusal of an offshore Partner visa (subclass 309/100) is a “reviewable decision” under s 338(5) of the Migration Act 1958, and the fact that the visa application was lodged outside Australia does not extinguish the right of review. However, the review application must be lodged in the name of the Australian sponsor/nominator, not the applicant offshore (s 347A(1)(b)), and the time limit is 70 days from the date the notification of refusal is received (regulation 4.10).
What the law says
In Australia’s migration system, the right to merits review is built from three legislative components, and all three must be considered together:
1) Is the decision reviewable? (s 338 of the Migration Act 1958)
Section 338 sets out the list of reviewable decisions. Subsection 338(5) deals specifically with visas that cannot be granted while the person is in the “migration zone” and where one of the criteria for grant is sponsorship or nomination by a specified person or body. The offshore Partner visa (309/100) sits squarely within that framework. For that reason, the belief that “to go to the Tribunal the visa application must have been lodged inside Australia” does not accord with the text of the legislation: the test is whether the decision answers the description in one of the paragraphs of section 338.
2) Who has the right to lodge the application? (s 347A)
This is the single most important point — the one that either carries a case or destroys it. Under s 347A(1)(b), for decisions covered by s 338(5) (and also s 338(8)), only the “sponsor or nominator” referred to in that same subsection may apply for review. The visa applicant, being outside Australia, generally has no standing in this category. By contrast, the requirement to be “physically present in the migration zone at the time the review application is made” applies only to the onshore categories: that is, decisions covered by ss 338(2), (3), (3A) and (4) under s 347A(2), and decisions covered by s 338(7A) under s 347A(3). The text of s 347A imposes no comparable physical-presence requirement on the sponsor in s 338(5) cases; accordingly, a sponsor who happens to be in Iran or any other country at the time the review application is lodged does not lose the right of review merely by reason of being outside Australia. That said, this outcome is conditional rather than automatic: the sponsor must be the very person whose sponsorship was undertaken as a criterion for grant of the visa, and must hold the legal status prescribed in s 338(5)(b) (the list of sub-paragraphs describing the sponsor’s status should be checked in every case against the current text of the legislation on legislation.gov.au). Any general assertion that a partner sponsor must be “resident in Australia” needs to be verified separately, on the facts of the particular case.
3) The statutory time limit (regulation 4.10 of the Migration Regulations 1994)
Regulation 4.10(1) prescribes different periods for different categories. For decisions covered by ss 338(5) to (8) — which includes an offshore partner refusal — the period is 70 days from the date the notification is received. Relying on the generic figure of “28 days”, or on the 21-day period applicable to onshore categories, in an offshore case is a costly error.
A comparison with employer-sponsored and visitor cases: in onshore refusals (for example, subclass 482 or a visitor visa where the applicant was in Australia), if the applicant leaves Australia before lodging the review application, they lose standing under s 347A(2). By contrast, the refusal of a subclass 482 or 494 for a person outside Australia who is identified in an approved and unceased nomination is reviewable under regulation 4.02(4), and it is the nominator who lodges the application. The logic is the same in offshore partner cases and offshore employer-sponsored cases: the right of review is conferred on the “sponsor/nominator” side in Australia.
Key requirements and time limits at a glance
| Issue | Legal position | Authority |
|---|---|---|
| Reviewability of an offshore partner refusal (309/100) | Yes; a visa that cannot be granted while the person is in the migration zone and for which sponsorship/nomination is a criterion for grant | s 338(5), Migration Act 1958 |
| Who lodges the review application | The sponsor/nominator referred to in that subsection — not the applicant offshore | s 347A(1)(b) |
| Physical presence in Australia requirement | Onshore categories only: ss 338(2), (3), (3A), (4) and 338(7A) | s 347A(2)–(3) |
| Time limit — offshore partner and related categories | 70 days from receipt of notification (decisions under ss 338(5)–(8)) | reg 4.10(1), Migration Regulations 1994 |
| Time limit — specified onshore categories | 21 days (decisions under ss 338(2) and 338(7A)) | reg 4.10(1) |
| Time limit — prescribed decisions | 28 days (decisions prescribed under s 338(9)) | reg 4.10(1) |
| Refusal of a 482/494 for a person outside Australia | Reviewable where there is an approved and unceased nomination; the application is lodged by the nominator | reg 4.02(4) |
| Conclusively establishing review rights in your case | The Department’s refusal letter states expressly whether a right of review exists and who may apply | Partner visa guidance — Department of Home Affairs |
What this means for you
If your Partner visa has been refused while you are outside Australia, the central message is clear and reassuring: the fact that you are offshore — and even the fact that your sponsor is offshore at the moment the review application is lodged — does not of itself close the case. As Negin Safaei explains, three practical steps need to be taken in the first few days. First, open the refusal letter and read the “review rights” section directly; that paragraph will tell you whether the decision is reviewable and who has the right to apply. Second, prepare the application in the name of the Australian sponsor, not the applicant; lodging in the wrong person’s name is the most common reason ART applications in this category are found to be invalid. Third, record the date of receipt of the notification precisely and build your planning around the 70-day period; these time limits are statutory and strictly applied.
Before taking any step, you should also confirm, against the actual documents on file, the sponsor’s legal status (Australian citizen, permanent resident, or eligible New Zealand citizen) and that the sponsorship was in fact undertaken and recorded as a criterion for grant of the visa. No general formula can substitute for that case-by-case assessment — and it is precisely that careful assessment which makes the difference between a successful review application and a lost opportunity.
Sources
- Migration Act 1958 (Cth) — s 338 (reviewable decisions) and s 347A (who may apply for review): legislation.gov.au — Migration Act 1958, current version
- Migration Regulations 1994 (Cth) — reg 4.10 (time for making an application for review) and reg 4.02 (prescribed decisions, including reg 4.02(4)): legislation.gov.au — Migration Regulations 1994, current version
- Department of Home Affairs — Partner visa (subclass 309/100) and notification of review rights in the decision letter: immi.homeaffairs.gov.au — Partner (Provisional and Migrant) visa
- Office of the Migration Agents Registration Authority (MARA) — registration and professional standards for migration agents: mara.gov.au
Your refused application may still be alive — let’s look at it together
Every day that passes from the date you received the refusal notification is part of your statutory time limit. If you are holding a Partner visa refusal letter and are unsure which of you should lodge the review application, a careful, case-specific assessment can clear the path: reading the review rights section, establishing the sponsor’s legal standing, calculating the deadline precisely, and setting the evidentiary strategy for the Tribunal. For personalised guidance from Negin Safaei, Australian migration lawyer and MARA-registered migration agent (MARN 1791573), have your decision letter and case details ready for a dedicated consultation and contact our office.
Frequently asked questions
If my Partner visa is refused while I am outside Australia, do I have a right of review at the ART?
Yes. The refusal of an offshore Partner visa (309/100) is a reviewable decision under s 338(5) of the Migration Act 1958. The statutory test is not where the visa application was lodged, but whether the decision answers the description in one of the paragraphs of section 338. The Department’s refusal letter will also state expressly whether a right of review exists and who may apply.
Should the ART application be lodged in the name of the visa applicant or the sponsor?
In cases falling under s 338(5) — that is, an offshore partner refusal — only the sponsor or nominator may apply for review, under s 347A(1)(b). A visa applicant who is outside Australia has no legal standing in this category. Lodging in the wrong person’s name is one of the most common reasons the right of review is lost.
How many days do I have to appeal an offshore Partner visa refusal?
Under regulation 4.10(1) of the Migration Regulations 1994, for decisions covered by ss 338(5) to (8) the period is 70 days from the date the notification is received. For decisions under ss 338(2) and 338(7A) the period is 21 days, and for decisions prescribed under s 338(9) it is 28 days.
What happens if the sponsor is not in Australia when the review application is lodged?
The requirement of physical presence in the migration zone in s 347A(2)–(3) applies only to the onshore categories (ss 338(2), (3), (3A), (4) and 338(7A)), and the legislation imposes no comparable requirement on the sponsor in s 338(5) cases. Even so, the sponsor must be the very person whose sponsorship was undertaken as a criterion for grant of the visa and must hold the legal status prescribed in s 338(5)(b); this needs to be assessed case by case.
What happens if an onshore visa applicant (for example, a 482 or visitor visa applicant) leaves Australia before lodging the review application?
In onshore refusals, if the applicant is not present in the migration zone at the time the review application is made, they lose the right to apply under s 347A(2). By contrast, the refusal of a subclass 482 or 494 for a person outside Australia who is identified in an approved and unceased nomination is reviewable under regulation 4.02(4), and it is the nominator who lodges the application.
This answer reflects the law and policy as verified on September 29, 2026. Immigration rules change frequently — confirm the current position before acting.
Mrs. Negin Safaee Registered Migration Agent 1791573
This article is general information only, current at the date shown, and is not legal advice. Do not rely on it for your own situation — immigration law and policy change frequently. Seek advice from a registered migration agent or immigration lawyer about your circumstances.