Winning Schedule 3 requirements - Partner Visa

“Compelling Reasons” must be at time of application or at time of decision?

If you are applying for a Partner Visa in Australia, your visa application must be made within 28 days after your last held substantive visa expires and that you ceased to be a holder of a substantive visa because of factors out of your control (“Schedule 3 requirements”).

 However, if there are compelling reasons, the Schedule 3 requirements may be waived.

 Is Schedule 3 a time of application or time of decision legal criteria?

Prior to the case of Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, there are cases to decide that the Schedule 3 requirements can only be satisfied by evidence provided to the Minister as at the time of submitting the application. However, the Full Federal Court in Waensila’s case decided that compelling reasons can arise at any time, including after the visa application was made.

Essentially, the Waensila’s case opens compelling reasons to include circumstances that have occurred well after lodgement of the partner visa application. The compelling reasons can be something happen some years after the visa application was lodged. This decision is favourable to the visa applicant.

Tribunal Cases

In Le, Cam Tu [2003] MRTA 6893, the Tribunal finds that there is a real risk that the sponsor would resume gambling if not for the ongoing support provided to him by the visa applicant to be one of the compelling reasons to waive Schedule 3 requirement.

In Clester, Wade Douglas [2003] MRTA 8788, the Tribunal finds that refusing to grant the visa to the visa applicant will have an adverse impact upon both the sponsor and the latter's two children, as well as their own newborn child to be one of the compelling reasons to waive Schedule 3 requirement.

In 0903322 [2010] MRTA 342, the Tribunal finds that the visa applicant had an 8-month old, Australian-citizen daughter from his relationship with the sponsor to be one of the compelling reasons to waive Schedule 3 requirement.

In V06/00604 [2006] MRTA 465, having regard to evidence regarding the long-standing nature of the sponsor’s depression, as well as the positive impact the visa applicant has had upon the sponsor’s life since their relationship began, the Tribunal is satisfied that the absence of the visa applicant would have a significant adverse impact upon the sponsor beyond that which would follow where parties in a relationship are temporarily separated whilst awaiting the processing of a visa application. The Tribunal is of the view this is a compelling reason to justify the waiver of the Schedule 3 requirement.

In Damien Michael Vickson Atueiya [2005] MRTA 260, the tribunal finds that “compelling reasons” exist in a situation where the sponsor and the visa applicant have been in a committed relationship for over 5 years.

HOW CAN WE HELP YOU

 Because representation matters for migration matter.

If you need assistance with your Australian visa matter you can contact us by calling 02-27007200 or email us to book in a time at info@ahclawyers.com.

 

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