Can Emotional Hardship Be Used as a Waiver for Schedule 3 Requirement?

In the case of BIBA (Migration)[1], the AAT affirmed that severe mental, psychological and health concerns of the Sponsor may be considered to be a compelling factor in satisfying Schedule 3 requirement.

 

Why Was BIBA’s Partner Visa Refused?

In BIBA, the visa applicant was refused of a Partner Visa (Subclass 820) for not meeting the Schedule 3 requirement as the visa applicant failed to satisfy criterion 3001 on the basis that the application was lodged after 28 days and the applicant did not hold a substantive visa for nearly 12 months when he made his Partner visa application. The delegate did not find that there were compelling circumstances to justify the waiver of the Schedule 3 requirement.

 

What Reasons Did the Visa Applicant Present to the AAT?

 

In the submission put forward by the applicant in the AAT, he presented the following two reasons as the main argument for waiving the Schedule 3 requirements:

  • Life threatening situation to his life in his home country; (however this was not considered by the AAT as the evidence was not substantial enough) and,

  • The mental, psychological and health concerns of the Sponsor which if not addressed properly would result in significant hardship in her daily life as she would not be able to cope with the applicant’s temporary departure to lodge an offshore application.

The Partner visa applicant not only presented medical reports from two treating psychiatrists which stated that the sponsor suffered from sleep disturbance, withdrawal from social activities, poor memory, constant worry and ruminating, some mood fluctuations, loss of pleasure and motivation, reduced confidence and self-doubt and some cognitive distortions including negative thinking but also concluded that the visa applicant could be of great support to the Partner visa Sponsor in managing her symptoms relating to anxiety and depression. Various parties also presented statutory declarations to the similar effects.

 

The Tribunal’s Reasoning to Waive Schedule 3 Requirement

 

The Tribunal member concluded that although the mental and/or psychological conditions of the Sponsor was difficult to accurately assess, the member was satisfied that having regard to the Sponsor’s mental/psychological health constituted compelling reasons for waiving the Schedule 3 criteria and consequently acted as a forceful reason as to why the applicant should be enabled to lodge an onshore Partner visa.

 

How Can We Help You?

 

It is rather difficult for the Department to waive the Schedule 3 criteria. If you require any assistance in relation to satisfying Schedule 3 requirements for Partner Visa matters, please call us now!

 

At Agape Henry Crux, our Accredited Specialist Immigration Lawyers and our team of lawyers are well trained to handle highly complex matters,  so book one of our lawyers or agents to seek professional advice now by calling 02-72002700 or email us to book in a time at info@ahclawyers.com.


[1] [2018] AATA 1883 (3 April 2018).