Yes — a refusal of an offshore Partner visa (subclass 309/100) is a decision that is reviewable by the ART, even where the application was lodged from outside Australia. The test is section 338(5) of the Migration Act, not the place where the application was lodged. However, the review application must be lodged by the Australian sponsor/nominator, not by the applicant offshore, and the time limit is 70 days from the date the notification is received.
Negin Safaei, Australian migration lawyer, MARA 1791573, highlights the one point in this question that decides the fate of many offshore matters: the common assumption that “you must have applied in Australia to go to the Tribunal” is not the legal test. The real test is whether the decision falls within section 338 of the Migration Act; and section 338(5) captures precisely the situation where the visa could not be granted while the person was in the migration zone and the applicant was, under one of the criteria for the grant of the visa, sponsored or nominated by a specified person or body.
The second decisive point is standing to lodge the review application. Under section 347A(1)(b), in decisions covered by 338(5) the person who may apply for review is the sponsor or nominator referred to in that provision; the applicant living overseas has no right to lodge the application personally. The requirement to be “physically present in Australia when the application is lodged” applies only to the onshore categories: decisions covered by 338(2), (3), (3A) and (4), and also 338(7A) within the framework of 347A(3). That is why, in onshore matters, an applicant who leaves Australia before lodging the review loses standing (347A(2)), whereas an offshore refusal of a 482 or 494 remains reviewable at the initiative of the nominator (regulation 4.02(4)).
The time limits must also be carefully distinguished: under regulation 4.10(1) of the Migration Regulations, for decisions covered by 338(5) to (8) the period is 70 days from receipt of the notification; for 338(2) and 338(7A) it is 21 days, and for decisions prescribed under 338(9) it is 28 days. Relying on the generic figure of “28 days” in an offshore Partner matter can be seriously misleading.
Alongside this framework, Negin Safaei always recommends two practical steps. First, examine the sponsor’s position closely and confirm that the sponsorship was undertaken in the manner the visa criteria actually require — it cannot simply be asserted in the abstract that “the sponsor living in Iran causes no problem at all” without testing the facts of the individual case. Second, read the “right of review” section in the Department’s decision record itself. Both the Department of Home Affairs and the ART make clear that the decision letter states whether the decision is reviewable and who may apply.
If you are holding a Partner visa refusal letter and want to know who must lodge the review, within what time limit and on what basis, a careful, individually tailored consultation can clarify the road ahead and set your mind at ease; contact Negin Safaei to have your case assessed.
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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.