Migration Mentor Felix CaraoGood news for Partner Visa applicants whose request for Waiver of Schedule 3 Criteria was not approved on grounds that the circumstances for compelling reasons occurred after the visa application was filed.

The Full Court of the Federal Court of Australia made a decision in the case of Waensila on 11 March 2016 that Clause 820.211 does not require a “time of application” restriction. All circumstances at the time of decision must be taken into consideration. This decision changed the grant of waivers of Schedule 3 Criteria for on-shore applicants for Subclass 820 (Temporary) Partner visas.

Waensila applied for a Subclass 820 Partner visa while he was in Australia. He applied for the Partner visa after 28 days from the expiry of his last substantive visa. He submitted compelling circumstances for not applying Schedule 3. These included fear of persecution in Thailand, his home country, as he is Muslim and fear that he will never be reunited with his wife. Long separation from his wife would affect his relationship as wife had health concerns and dependent on him for continuing care, unemployed and was financially dependent on him.

Migration regulations under Clause 820.21 is titled “Criteria to be satisfied at time of application”. This requires that applicants who do not hold substantive visas or a Subclass 995 (Diplomatic) visa or a special purpose visa must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless there are compelling reasons for not applying these criteria.

Criterion 3001 requires that application is made within 28 days from the last day during which the applicant held a substantive visa. Criteria 3003 and 3004 specify that the applicant is not the holder of a substantive visa because of factors beyond his/her control; there are compelling reasons for granting the visa; and the applicant complied substantially with the conditions of the last visa.

A Schedule 3 Waiver can be any circumstances beyond the control of the applicant.

However, the applicant must submit strong justifications to the Immigration Department with supporting letters and pieces of evidence. For instance, applicant and sponsor have a child together, which would cause psychological hardship due to separation from the partner and child and the sponsor having to stay home to take care of their child instead of working.

In view of the decision in the Waensila’s case, those who think they can provide compelling reasons to be exempted from Schedule 3 may lodge their submissions justifying their circumstances to the Immigration Department. Likewise, for those whose applications are still pending in the Tribunal or Federal Circuit Court or Federal Court may submit their justifications to the office concerned.

Felix Carao, Principal Recruitment Migration Consultant of ALLKILLS RECRUITMENT & MIGRATION SERVICES PTY LTD, is a Registered Migration Consultant (MARN 1069354), a Qualified Education Counselor (QEAC G028), and an Accredited Recruitment Professional (MRCSA 51889). For enquiries, you may call 04 1232 1187 or email him at felix@allskills.com.au or visit  www.allskills.com.au

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