Understanding Schedule 3 Waivers: How Judicial Errors Can Salvage a Partner Visa Application
Court decisions do more than just resolve individual disputes; they act as a spotlight on the complex machinery of immigration law. For visa applicants, a successful judicial review clarifies the rules that the Department of Home Affairs and Tribunals must follow. When a court finds that a decision-maker fell into "jurisdictional error," it essentially resets the playing field, ensuring that your application is assessed fairly and according to the correct legal principles. This recent judgment highlights precisely why decision-makers cannot take shortcuts when assessing "compelling reasons" for partner visas.
Background: The Applicant’s Journey
The case concerns an Indian national who arrived in Australia in 2008 on a student visa. After his student visa ceased in 2012 and a subsequent permanent visa application was refused, he remained in Australia unlawfully.
In May 2016, whilst unlawful, the applicant applied for a Partner visa (Subclass 820/801) based on his relationship with his Australian sponsor. Because he did not hold a substantive visa at the time of application, he was required to satisfy Schedule 3 criteria (specifically criteria 3001, 3003, and 3004) unless "compelling reasons" existed to waive them.
The applicant and his sponsor provided extensive evidence to the Administrative Review Tribunal (the Tribunal), including:
Medical circumstances: The sponsor suffered from thyroid disease, and the couple was trying to conceive.
Mental health: The applicant suffered from anxiety.
Hardship: Claims that the sponsor could not cope emotionally or financially without the applicant, and that she could not relocate to India or Pakistan due to safety and political tensions.
Pandemic restrictions: Arguments regarding the high risk of COVID-19 in India and the travel bans in place in 2020.
The Tribunal accepted the relationship was genuine but affirmed the visa refusal. It found that because the applicant failed Criterion 3001 (applying within 28 days of his last visa expiring), it did not need to assess the remaining criteria (3003 and 3004). It simply concluded that the reasons provided were not "compelling" enough to waive the requirements.
Did the Tribunal ask the right questions
The central legal error in this case was the Tribunal’s approach to the Schedule 3 criteria. The Tribunal believed that once the applicant failed Criterion 3001, it was unnecessary to consider whether he met Criteria 3003 or 3004 before moving to the "compelling reasons" test.
The Court found this approach to be incorrect. The Judge ruled that failing to consider the other criteria deprives the decision-maker of a "proper appreciation of the nature and extent" of the applicant's non-compliance.
Why is it necessary to assess all Schedule 3 criteria even if one is failed?
The Court reasoned that you cannot properly assess whether reasons are "compelling" without knowing exactly how far the applicant has fallen short of the requirements. The Judge noted that an applicant’s reasons for a waiver might not need to be as forceful if they only missed the 28-day deadline by one day (Criterion 3001), compared to an applicant who has a long history of breaching visa conditions (Criterion 3004).
The Court stated: "The degree to which a decision-maker finds an applicant's reasons to be forceful... will be informed by the degree to which the applicant has not met those same criteria". By ignoring Criteria 3003 and 3004, the Tribunal lacked the "evaluative foundation" to make a fair decision.
Was the Tribunal allowed to assume the sponsor could travel during a pandemic?
Justice Katzmann found that the child remained ordinarily resident in Australia throughout his first 10 years. The lengthy absence in India did not outweigh the parents’ intention and the temporary purpose of that absence. The judge emphasised that “Australia was the place where [the parents] regularly or customarily lived” and it was the place to which they expected their son to return. The court declared that the child “has been an Australian citizen since his 10th birthday”. Consequently, the cancellation of the citizenship certificate was overturned, and costs were ordered against the Minister.
What was the final outcome?
The Court issued a writ of certiorari to quash the Tribunal's decision and a writ of mandamus requiring the Tribunal to redetermine the application in accordance with the law. This means the applicant gets another chance to have his "compelling reasons" assessed using the correct legal methodology.
In summary, a few takeaways from this case are:
Do not simply focus on the hardship. You must understand the extent of your non-compliance. If you are applying for a waiver, the decision-maker must weigh your compelling reasons against all the reasons you failed the criteria.
Even if you know you fail the 28-day rule (Criterion 3001), you should still provide evidence regarding Criterion 3004 (factors beyond control, substantial compliance with previous conditions). Showing you meet 3004 might lower the threshold for the "compelling reasons" needed to save your visa.
General claims about difficulty are rarely enough. In this case, specific evidence regarding thyroid conditions, IVF attempts, and financial commitments was crucial to the argument, even if the Tribunal initially rejected them.
The decision-maker will consider your entire history, including prior breaches. You must address these head-on and explain why, despite this history, the current circumstances are sufficiently robust to warrant a waiver.
How Can Agape Henry Crux Help You
Is your Partner Visa at risk due to Schedule 3 issues? Navigating "compelling reasons" requires a strategic approach that analyses your entire migration history, not just your current relationship. Speak to an Accredited Specialist in Immigration Law for tailored advice on your case before it is too late. You can book a Migration Planning Session to schedule a time with one of our immigration lawyers to seek professional advice by calling 02-83105230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin and Cantonese. If these aren’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
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