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There is no automatic right to an Australian Partner visa. Applicants in Australia who hold a substantive visa must be in a relationship with an Australian Citizen or Permanent Resident and be able to demonstrate that (1) they have a mutual commitment to a shared life together to the exclusion of all others, (2) the relationship is genuine and continuing, and that (3) they live together or do not live separately and apart on a permanent basis. 

 However, additional criteria is imposed on applicants applying for an Australian Partner Visa who do not hold a substantive visa, such as those who are unlawful at the time they apply or having been on a Bridging Visa for in excess of 28 days. This is known as Schedule 3 criteria.

 Accordingly, the Migration Regulations state that applicants who are not a holder of a substantive visa must satisfy Schedule 3 criteria 3001, 3003 and 3004, unless they are able to demonstrate that compelling reasons exist for not applying Schedule 3 to their application.

 Importantly then, what does Schedule 3 require applicants to show and if applicants cannot satisfy Schedule 3, what constitutes compelling reasons to ‘waive’ Schedule 3? Let’s take a closer look!

What Does Schedule 3 Say?

 To clarify, there is more than one provision within Schedule 3 which may apply to an applicant, however for the most part, 3001 and 3004 are the most likely to apply to Partner visa applicants who do not hold a substantive visa.

3001 — This regulation requires that applicants not be unlawful or on a Bridging Visa for more than 28 days since last holding a substantive visa. Accordingly, if an applicant has been unlawful or on a Bridging Visa for more than 28 days, they cannot satisfy 3001.

 However, even for those who have been unlawful or on a Bridging Visa for less than 28 days since last holding a substantive visa, then they will also need to satisfy criteria 3004.

3004 — This regulation requires that applicants be able to demonstrate that (1) they are not the holders of a substantive visa because of factors beyond their control, (2) there are compelling reasons for granting the visa, (3) they have complied substantially with all previous visa conditions, (4) the applicant would otherwise be eligible to have granted the Partner visa, and (5) the applicant intends to comply with any conditions imposed on the Partner visa. 

 Accordingly, even for applicants who get through 3001 (by applying within 28 days), 3004 could be problematic if they cannot address each of the above points.

How Do We Waive Schedule 3?

 As mentioned at the beginning of this blog, if applicants cannot satisfy Schedule 3 (3001, 3003 and 3004), then they must be able to demonstrate there are compelling reasons to ‘waive’ the application of Schedule 3 against them. Unfortunately, there is no way to apply for this ‘waiver’ before the Partner visa is applied for and it is simply assessed in conjunction with all other visa criteria. So the case could be that the Partner visa could otherwise be granted, except that Schedule 3 is not satisfied and an applicant is unable to demonstrate compelling circumstances to have it waived.

 Unfortunately, there are no clear guidelines that suggest what will constitute compelling circumstances in the eyes of the DIBP, however, Government policy does provide some guidance on how strictly they will approach this tricky area of Migration Law.

What does the Government Policy Say?

 The Government Policy (what is used by DIBP case officers to help interpret the law and guide case officer decision making), states the following:

The Migration Regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply Schedule 3 criteria 3001, 3003 and 3004. As such, officers should consider circumstances on a case by case basis.
In doing so, however, officers should be mindful that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status. The provisions are not intended to give, or be perceived to give, an unfair advantage to persons who:

  • fail to comply with their visa conditions or
  • deliberately manipulate their circumstances to give rise to compelling reasons or
  • can leave Australia and apply for a Partner visa outside Australia.

An example of where the circumstances may not be compelling to waive the Schedule 3 requirements may be where an applicant has remained unlawful for a number of years, made little or no effort to regularise their status and claims compelling circumstances on the basis of a long term relationship with their sponsoring partner and/or hardship caused by separation if they were to apply outside Australia for the visa.

With the intent of the waiver provisions in mind, it is generally reasonable to expect that compelling reasons to exercise the waiver provision exist where an applicant’s circumstances happened beyond their control. That is, circumstances beyond the applicant’s control had led them to become unlawful and/or prevented them from regularising their status through means other than the Partner visa application for which they seek the waiver.

For example, in the scenario given earlier, it is reasonable to accept that compelling circumstances exist to waive the Schedule 3 criteria if, for reasons beyond the applicant’s control — such as severe illness or incapacity — the applicant was prevented from regularising their status in the years they had been unlawful.

As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria. This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, whilst it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.
Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. This not only ensures fairness and equity to other applicants and discourages deliberate non-compliance, but also preserves the integrity of the Partner visa program in general and the waiver provisions in specific.
Matters that officers should take into consideration when assessing whether the applicant’s circumstances may be considered compelling include but are not limited to:

  • any history of non-compliance by the applicant
  • the length of time the applicant has been unlawful
  • the reasons why the applicant became unlawful
  • the reasons why the applicant did not seek to regularise their status sooner
  • what steps, if any, the applicant has taken to regularise their status (other than applying for a Partner visa).

(Source: DIBP — ​ PAM3 — MIGRATION REGULATIONS — SCHEDULES > PAM — Sch2 Visa 820 — Partner)

What is the Conclusion Knowing All This?

Government policy shows us that the DIBP will not make it easy for applicants who have purposely remained unlawful in an attempt to circumvent visa requirements to regularize their status through an Australian Partner visa. However, what readers should understand is that the waiver provisions are discretionary meaning that applicants are welcome to put forward all the facts of their relationship to help demonstrate compelling circumstances exist. Importantly, applicants must be able to show that compelling circumstances existed at the time of visa application and not necessarily what has developed after the visa has been applied for.

 Some factors that may help an argument of compelling circumstances may include:

  1. If there are any young biological children (Australian Citizens) of the relationship and the potential impacts on their health and well-being;
  2. Detailing the degree of hardship (both financial and emotional) that would be caused should the applicant need to depart and re-apply from outside Australia, which is greater than the ‘standard’ hardship suffered by other relationships;
  3. If there has been some unforeseen accident/injury/illness to an Australian family member which has lead to the current situation;
  4. Any other factor which differentiates the relationship from any other Partner Visa applications which can be seen as compelling on an ordinary person making an assessment.

If Schedule 3 applies to you, and ​if you require the assistance of a Migration Lawyer today, then get in contact on 1300 MIGR8TE (644 788) or email your enquiry to enquiry@salvomigration.com.au and we hope you learnt something valuable by visiting our site.

 Also, click here for more useful blogs by our Immigration Lawyers.

 Otherwise you can contact us at the following address:

Salvo Migration
 320 Adelaide St
 Brisbane QLD 4000
https://goo.gl/Bao5ma

Originally Published here: Partner Visa — Waiving Schedule 3 Criteria — Compelling and Compassionate Circumstances

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