Can a Planned Desire to Have a Child Waive the Schedule 3 Criteria?

In Lan v Minister for Immigration & Anor[1], the Counsel for the applicant argued that a future intention to have children stated prior to the time of a decision concerning the grant of a Schedule 3 waiver was both a relevant consideration and a compelling reason for the grant of a waiver.

 

This reasoning was adopted from the Full Court’s decision in Waensila[2], where it was held that any matter arising prior to the time of a decision on a waiver request must be taken into account. Previous to this, the prevailing principle was that only matters which existed at the time of lodgement of the application could be taken into account.

 

In Lan, Judge Egan determined that future intentions of an applicant and the sponsor, whether reasonably based or not, are not matters that the Tribunal is obligated to consider when making a decision.

 

Rather, the Judge held that the matters to be considered are limited to the ones “which are existing and established facts as at the time of the making of the decision”. Therefore, “compelling reasons” that applicants intend to rely on for arguing a Schedule 3 waiver must “actually exist” at the time of the decision.

 

Does Future Pregnancy Qualify as Compelling Reason?

 

The Federal Circuit Court was not satisfied that an intended future pregnancy qualified as a compelling reason in the circumstances of this matter.

 

Therefore, in any given scenario, applicants who try to rely on the possibility that something that might happen in the future or desire to have something happen, cannot be a basis or foundation upon for which they request to waive a Schedule 3 criteria. 

 

Key Takeaway

 

The important lesson to be learnt from Lan is that applicants should only present the Tribunal with “real existing facts” prior to the time of the decision.

 

How Can Agape Henry Crux Help You

 

There is a rather high threshold to waive the Schedule 3 criteria. If you require assistance with satisfying Schedule 3 requirements for Partner Visa matters, please call us.

 

At Agape Henry Crux, our Immigration Lawyers are well trained to handle highly complex matters. You can book a consultation with one of our lawyers to seek professional advice by calling 02-72002700 or email us to book in a time at info@ahclawyers.com.


[1] (2018) FCCA 1170 (2 May 2018)

[2] Waensila v Minister for Immigration & Anor (2016) 241FCR 121