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Schedule 3 Criteria Waiver

VisaOne
2 September, 2020

Schedule 3 criteria permits unlawful non-citizens to apply for a visa in Australia on compassionate or compelling grounds, instead of being required to depart Australia and apply offshore.

The purpose of the Schedule 3 criteria is to:

  • Encourage non-citizens who have a legitimate basis for remaining in Australia to apply for a further visa before their current substantive visa ceases
  • Discourage non-citizens from remaining in Australia beyond the period of effect of their substantive visa and
  • Prevent non-citizens from benefiting by remaining in Australia unlawfully, by possibly acquiring visa eligibility while remaining here without lawful permission

There are situations in which non-citizens remain in Australia without a substantive visa through circumstances over which they have no control and situations where there are compelling reasons for granting them a visa to remain. Unfortunately, there is not a set of “examples” for compassionate and compelling grounds however, the ground must be in relation to an Australian citizen or permanent resident, as an individual or a business.

Partner visa, due to Migration Act s.48 and its assessment criteria, has been the best option to those who had been unlawful in Australia and would not (or unable to) return to their home country to apply for an Australian visa. Yet, applications refused based on the applicant unable to satisfy Schedule 3 criteria has been high, hinting unless you have a strong and touching reason to lodge the visa application onshore, you are likely to get your application refused.

Make sure you lodge the right visa application at the right time in the right place. It not only assists in your application assessment but also lowers the risks of refusals. Partner visa can be very complicated and, if not in good hands, it could become a disaster.

Schedule 3 criteria waiver

Please be advised that on 01 July 2014, Department of Home Affairs (DHA) has changed its policy in relation to Schedule 3 – Criteria 3004. These changes have affected Partner visa (subclass 820/801) for applicants who made/make your application when your substantive has ceased or you were/are the holder of a bridging visa or you were/are an unlawful citizen or the last substantive visa you held contained the Condition 8503 ‘No Further Stay’, at the time of the application.

The policy states:

Criterion 3004 requires that, if an application was made within 28 days after your substantive visa ceasing, you must meet ALL of the following provisions:

  • (a) You are not the holder of a substantive visa because of factors beyond your control; AND
  • (b) There are compelling reasons for granting partner visa; AND
  • (c) You have complied substantially with any conditions subject to which your last visa was granted; AND
  • (d) You intend to comply with any condition subject to which the partner visa is granted; AND
  • (e) You would have been entitled to be granted a partner visa had you applied for the visa on the day when you last held a substantive visa; AND
  • (f) The last substantive visa you held (if any) was not subject to a condition ‘8503 – No Further Stay”.

If you are unable to demonstrate that you meet Criteria 3004, the Migration Regulations state that the Schedule 3 criteria may be waived where there are compelling reasons for not applying those criteria. The Migration Regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not to apply Schedule 3 criteria. Circumstances are therefore considered on a case by case basis pursuant to policy. The law provides firstly that policy must be applied flexibly, and secondly that the Regulations cannot be limited by a too narrow policy.

Both the visa applicant and the sponsor should be invited to put forward any claims for DHA to consider when assessing if compelling grounds exist.

The visa applicant should explain in detail the circumstances that led you to become the person who is not the holder of substantive visa and provide information relating to any compelling reasons you may feel apply to your case.

You will need to provide relevant documents to support your claims.

You will also need to provide documents and information in relation to Regulation 1.09A and 1.15A, which address all matters regarding the relationship between you and your sponsor such as Financial Aspect, Nature of the Household, Social Aspect and the Nature of Commitment to Each Other.

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 DHA, 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 DHA 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: DHA – PAM3 – MIGRATION REGULATIONS – SCHEDULES > PAM – Sch2 Visa 820 – Partner)

What is the Conclusion Knowing All This?

Government policy shows us that the DHA 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 led 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.

APPEALS

If you have recently been refused an Australian visa, and disagree with the decision, there are some steps you can take. Book a consultation with a lawyer or a registered agent to get expert legal advice.

VISA CANCELLATIONS

Not all decisions are reviewable by the AAT. For example, you cannot apply to have a decision reviewed by the AAT if the Minister for Immigration and Border Protection personally decides to refuse or cancel your visa under section 501 of the Migration Act 1958.

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