Creative Way of Winning Schedule 3

In the case of Moktan v Minister for Immigration & Anor [2019] FCCA 2687 (24 September 2019), the Applicants failed on the Schedule 3 requirement at the Tribunal but successfully won the case on jurisdictional error at the Federal Circuit Court of Australia.

 

Legal background of the Applicant and Schedule 3 Requirement

Schedule 3 requirements are additional requirements that Applicants must meet for the grant of an onshore partner visa (Subclass 820/801) if they do not hold a substantive visa at the time of lodging their application in Australia.

Generally, the only way Schedule 3 requirements can be waived is through satisfying the Minister there are ‘compelling reasons’ in doing so.

 

What was the Compelling Reason the Applicants used?

 

In this case, there was a range of reasons put forward, including but not limited to:

·       Emotional dependence

·       Psychological Support after family’s death

·       Alleged that the Sponsor was in a violent relationship in the past

·       Starting a family (NB: we previously wrote an article that this does not constitute compelling reason alone)

·       Financial Obligations

The Department and the Tribunal concurred that these do not constitute compelling reasons whether alone or combined.

 

So how did this win at Federal Circuit Court of Australia?

 

The critical point here was that, in submitting information that there was emotional dependence, they provided evidence to the Tribunal that their solicitor had advised them that they would be subject to a three year bar if they decided to leave Australia and apply for an offshore Partner visa.

 

The Court held that this was a jurisdictional error where the Tribunal failed to consider that the reason they did not apply for an offshore partner visa (which does not contain the Schedule 3 requirements) due to the incorrect advice provided by their solicitor may have been a compelling reason for him not applying offshore. That is, it would have amplified their desire not to be apart, emotional dependence, a commitment etc.

 

[32] It is plain from para.49 of the Tribunal’s decision record that the applicant’s failure to leave Australia and apply offshore was part of the reason the Tribunal did not waive compliance with criterion 3001. However, in that part of its reasoning, the Tribunal dealt with only one part of the applicant’s explanation for not departing Australia, his desire to be with his wife and their attempts to conceive. The length of separation which the applicant had, until the Tribunal hearing, believed were involved in applying offshore, would, one must assume, have magnified the appeal of staying onshore and pursuing the present application. However, the Tribunal made no reference to that when determining whether the parties’ genuine commitment to each other and desire to not be apart could provide a sufficiently impressive reason for not applying offshore.

[33] If it had considered the applicant’s decision to not apply offshore by reference to his mistaken understanding of what that involved, the Tribunal might have reached a different conclusion on whether there were compelling reasons to forgive compliance with criterion 3001.

[34] In those circumstances, the Tribunal’s failure to have regard to the whole of the applicant’s evidence on this subject leads to its decision being affected by jurisdictional error. 

-       As extracted from the Judgement

How Can Agape Henry Crux Help

If you are experiencing difficulties in meeting Schedule 3 requirement for your Partner visa, please do not hesitate to contact us. Our lawyers are well trained to handle such complex issues. You can book one of our lawyers to seek professional advice by calling us on +61 2 7200 2700 or email us info@ahclawyers.com

 

We speak fluent English, Korean, Mandarin, Cantonese, Burmese and Indonesian. If these aren’t your language, we can also help you arrange an interpreter, so we can communicate smoothly.