How to win Partner Visa schedule 3 cases

Introduction

Schedule 3 Partner Visa – if you are in Australia without a valid visa, you may still apply for a Subclass 820 Partner Visa (click here to learn more). However, at the time of your application you must either:

• entered Australia:

• as a holder of Subclass 995 (click here to learn more) or as you are a SOFA (Status of Forces Agreement between Australia and France, Malaysia, NZ, PNG, Philippines, Singapore, Turkey or the USA) member or SOFA forces civilian component member and held a special purpose visa holder; and
• satisfies Schedule 3 criterion 3002;

• satisfied Schedule 3 criteria 3001, 3003, and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria it feasible to submit an onshore

Partner visa application without a current visa?

The difficulty of applying for a second visa in Australia while holding a non-substantive visa, or if your visa is not valid, is that you are likely worried about the likelihood that your Partner visa application will be approved. You must adhere to the additional Schedule 3 standards in this situation. We’ll discuss the repercussions of applying for a partner visa in Australia while holding a non-valid visa in this post, as well as how to satisfy the additional Schedule 3 requirements to have your application granted. Let’s see how we can assist you after you tell us your tale and the stage you are at.

Is Schedule 3 Requirement Time of Application or Time of Decision Legal Criteria?

Prior to the case of Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, there are cases to decide that the Schedule 3 requirements can only be satisfied by evidence provided to the Minister as at the time of submitting the application. However, the Full Federal Court in Waensila’s case decided that compelling reasons can arise at any time, including after the visa application was made.

Essentially, Waensila’s case opens compelling reasons to include circumstances that have occurred well after the lodgments of the partner visa application. The compelling reason can be something that happened some years after the visa application was lodged. This decision is favorable to the visa applicant.

Tribunal Cases

• In Le, Cam Tu [2003] MRTA 6893, the Tribunal finds that there is a real risk that the sponsor would resume gambling if not for the ongoing support provided to him by the visa applicant to be one of the compelling reasons to waive Schedule 3 requirement.
• In Clester, Wade Douglas [2003] MRTA 8788, the Tribunal finds that refusing to grant the visa to the visa applicant will have an adverse impact upon both the sponsor and the latter’s two children, as well as their own newborn child to be one of the compelling reasons to waive Schedule 3 requirement.
• In 0903322 [2010] MRTA 342, the Tribunal finds that the visa applicant had an 8-month-old, Australian-citizen daughter from his relationship with the sponsor to be one of the compelling reasons to waive Schedule 3 requirement.
• In V06/00604 [2006] MRTA 465, having regard to evidence regarding the long-standing nature of the sponsor’s depression, as well as the positive impact the visa applicant has had upon the sponsor’s life since their relationship began, the Tribunal is satisfied that the absence of the visa applicant would have a significant adverse impact upon the sponsor beyond that which would follow where parties in a relationship are temporarily separated whilst awaiting the processing of a visa application. The Tribunal is of the view this is a compelling reason to justify the waiver of the Schedule 3 requirement.
• In Damien Michael Vickson Atueiya [2005] MRTA 260, the tribunal finds that “compelling reasons” exist in a situation where the sponsor and the partner visa applicant have been in a committed relationship for over 5 years.
  
  

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