The criteria for a partner visa at the time of application and time of decision, in 820.211 (1) (2) (a) (c) (d) (5), (6), (7), (8) or (9), is satisfied and particularly the compelling reasons.
In 820.211 (2) (d) (ii) state the applicant satisfies schedule 3 criteria 3001,3003 and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18 — by the spouse or de facto partner ; or
(ii) if the applicant’s spouse has not turned 18 — by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa — either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
Schedule 3 Criteria
3001
(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or
(b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or
(c) if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully; or
(d) if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation — the later of:
(i) the day when that last substantive visa ceased to be in effect; and
(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal‘s decision.
3002
The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)).
3003
If:
(a) the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and
(b) on 31 August 1994, the applicant was either:
(i) an illegal entrant; or
(ii) the holder of an entry permit that was not valid beyond 31 August 1994;
the Minister is satisfied that:
(c) the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant’s control; and
(d) there are compelling reasons for granting the visa; and
(e) the applicant has complied substantially with the conditions that apply or applied to:
(i) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(ii) any subsequent bridging visa; and
(f) the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and
(g) the applicant intends to comply with any conditions subject to which the visa is granted; and
(h) the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
3004
If the applicant:
(a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and
(d) there are compelling reasons for granting the visa; and
(e) the applicant has complied substantially with:
(i) the conditions that apply or applied to:
(A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B) any subsequent bridging visa; or
(ii) the conditions that apply or applied to:
(A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B) any subsequent bridging visa; and
(f) either:
(i) in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii) in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g) the applicant intends to comply with any conditions subject to which the visa is granted; and
(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
The case authority, In the Waensila v minister for Immigration and Border Protection [2016] FCAFC 32 (11 march 2016), all three Federal Court Justices making up the Full Bench Agreed with Parish Patience Immigration Lawyers that on onshore partner visa application for applicant who does not hold a substantive visa satisfy schedule 3 requirement at the time of decision not time of application.
at paragraph 13… “ It is expected that the waiver will be exercised only where there are reasons of a strongly compassionate nature as where there is an Australian citizen children from the relationship or where the applicant and his or her nominator are already in a long standing relationship which has been in existence for 2 years or longer. Waiver may be justified by the hardship which could result if the schedule 3 criteria were not waived.”
at Paragraph 32, in summary the compelling reasons were that the applicant was not on a substantive visa, he feared persecution to lodge a fresh application if he were to return to Thailand as a Thai Muslim citizen, and his fear that he would never be reunited with his wife if he returned to Thailand, his concern that the long period of separation from his wife would affect their relationship, his wife suffered from allergies in her eyes, difficulty sleeping, blackouts, epilepsy, diabetes, arthritis in her back, cholesterol and was under constant medication for various illnesses and relied on the appellant for continuing care; his wife was not working and was financially dependent on him.
These are all compelling reasons to waive schedule 3 criteria.
Other relevant Cases for compelling reasons:
Babicci v MIMIA (2005) 141 FCR 285 [2005] FCAFC 77 the applicant did not have a substantive visa, as it had expired. The applicant went to the Philippines got married and returned to Australia and lodged an application, the applicant then gave birth to a son. The sponsor suffered a variety of ailments that the applicants presence in Australia would alleviate some of his symptoms. Sponsor had to work hard to provide funds for the applicant. The sponsor had psychological and emotional problems
Le, Cam Tu [2003] MRTA 6893,
The applicant did not hold a substantive visa. The applicant began a relationship and married the sponsor, who is an Australian citizen. they had joint liability of a home ownership together. The sponsor relied on his wifes help to stop gambling, she had changed his life.
Clester, Wade Douglas [2003] MRTA 8788,
The applicant and sponsor were in a long standing relationship but had both been previously married and divorced. They have an Australian citizen child born a year after the application was made.
0903322 [2010] MRTA 342, the applicant did not have a substantive visa, the applicant and the sponsor was in a de facto relationship, they had an Australian citizen child.
Please call our office on 02 9286 8700 or email: ppmail@ppilaw.com.au
Parish Patience Immigration Lawyers is here to assist if you wish to move to Australia as a skilled worker and require professional advice.
Book a Consultation for Expert Advice on subclass 820/801 Visa.
English
Arabic
Bengali
Chinese (Simplified)
Dutch
Filipino
French
German
Hindi
Italian
Japanese
Korean
Pashto
Portuguese
Russian
Spanish