Schedule 3 requires a visa applicant to hold a valid substantive visa at the time of application, or, no more than 28 days have lapsed since they last held a substantive visa.
A refusal of the partner visa may result if the applicant did not sufficiently demonstrate compelling and/or compassionate reasons why the Schedule 3 criteria should be waived.
Compelling and compassionate circumstances affecting an Australian citizen or permanent resident, or an Australian business of such significant that the case offer is lead to the decision to waive Schedule 3 criteria.
In many cases, demonstrating that the relationship is a lengthy or strong relationship cannot in itself constitute compelling reasons to waive the Schedule 3 requirements. In a recent decision by the Department of Home Affairs to waive Schedule 3 criteria for our client, the length of the relationship itself was not substantial. Nevertheless, by addressing key criteria for compelling and compassionate circumstances Crystal Migration was able to obtain the waiver.
Case Summary
- Applicant was granted a Subclass 820 visa with previous partner, subsequently withdrawing the Subclass 801 visa application due to relationship breakdown.
- Applicant applied for a Subclass 866 Protection visa and was granted a Bridging Visa A
- Applicant received notification of refusal of Subclass 866 Protection visa and subsequently applied for Subclass 820/801 Partner visa with his de facto partner of 9 months
- Departmental records indicated that the applicant adhered to visa conditions of previous visas during the duration of stay in Australia, approximately 6 years
Factors deemed to be sufficient for the case officer to waive the Schedule 3 requirements include:
- Compelling reasons for granting the visa
- Compliance with past visa conditions and future intention to comply
- Otherwise entitled to visa grant
- Last visa held was not subject to a “no further stay condition”.
- The applicant ceased to hold a substantive visa for reasons beyond their control
Departmental Policy indicates that the term ‘compelling’ is not defined in Migration law and should therefore be given its normal dictionary meaning: “brought about by moral necessity”. The policy further explains that compelling reasons may also stem from compassionate factors or may arise, for example, from an applicant’s circumstances or the circumstances of another person, directing the decisionmaker to consider the likely consequences of not granting the visa when determining whether circumstances are compelling.
Compelling and compassionate circumstances applicable to the couple included, but were not limited to the following:
- Applicants employment in a critical sector and intention for the employer to continue to employ the applicant.
- Inability for the sponsor to relocate to the visa applicant’s home country as a result of an inability to speak the language, earn a living and general safety concerns with regard to the high crime rate.
- Impact on the sponsor’s immediate family members should the applicant/sponsor be required to depart, particularly the elderly grandmother’s reliance on both the sponsor and applicant for regular visits to alleviate mental health conditions such as depression and anxiety.
- Sponsor’’s employment ties to Australia having dedicated her career to Aviation, an industry suffering from the residual effects of the Covid-19 pandemic. The sponsor’s skills would not be easily transferable to the applicant’s home country due to language barrier.
- The sponsor having been diagnosed with a medical condition impacting fertility, requiring both physical and emotional support, in what is usually an intimate topic between partners leading to considerations of earlier family planning. The public healthcare system in the applicant’s home country is cited as being overcrowded, with significant wait times and rudimentary facilities by comparison to Australia. The potential for emergency treatment should it be required would mean the sponsor would be at greater risk of harm as the same level of care would be not available.
- The sponsor’s reliance on the applicant’s substantially higher earning capacity to contribute to the home loan and financial liabilities.
The case officer found the above mentioned factors meet the criteria to waive Schedule 3 after a strong submission supported by documentation was submitted.
In any request for a Schedule 3 waiver, the submission would require significant evidence to establish the claims made are truthful and convince the case officer the applicant should not be required to apply for an offshore partner visa and return to their home country. All requests should be sufficiently documented to substantiate claims made.
We, Crystal Migration Legal Services, have a wealth of experience assisting our clients with complex partner visa matters. Each couple’s circumstances are entirely different, therefore it is important to consult a legal professional to assist with your matter to ensure a smooth process going forward. Should you require assistance or have any queries, please feel free to get in touch with us today.