Schedule 3 Continued...

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. 

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.

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