Migration Amendment (Subclass 309 Applicant Review Rights) Regulations 2023 [the Regulations] dated 30 March 2023, amends the Migration Regulations 1994 to enable applicants who were refused, a Partner (Provisional) (subclass 309) visa, to apply for merits review of that refusal at the Administrative Appeals Tribunal.
The applicants for a Subclass 309 (Partner (Provisional) visa must usually be outside Australia to apply for and be granted the visa but under the Migration Amendment (2021 Measures No.1) Regulations 2021, COVID-19 concession provisions were inserted into the Migration Regulations to allow for the grant of a Subclass 309 visa in Australia. These regulations retained the position that the applicants sponsor has the right to seek merits review of a refusal decision, to align with the merits review rights of Subclass 309 applicants who were unaffected by COVID-19 concession provisions.
On 20 August 2022, the Migration Amendment (Subclass 100 and 309 Visa) Regulations 2022 inserted ‘relationship cessation provisions’ (RCPs) into the Migration Regulations for Subclass 309 applicants who can be granted their visa in Australia under the COVID-19 concession. The Regulations allow Subclass 309 applicants who are in Australia and who could be granted their visa in Australia under the COVID-19 concession provisions, to have standing to seek merits review by the AAT if the visa application is refused. This addresses the issue that a sponsor may be unwilling, or unable, to apply for merits review if their relationship with the applicant has ceased.
This Amendment Regulations provides the right to the subclass 309 concession cohort, to seek merits review of a refusal decision.
The instrument is registered on the Federal Register of Legislation on 3 April 2023 and commenced on 4 April 2023. It is currently in force.
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