Parish Patience Immigration Lawyers

Please be advised that on 01 July 2014, DIBP has changed its policy in relation to Schedule 3 - Criteria 3004, which may affect your application for a Subclass 820/801 visa if you 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 new 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 have not lodged your application or your applications are currently pending with DIBP, you will be likely invited to provide information addressing whether you meet the above criteria.  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 can not be limited by a too narrow policy.

Both the visa applicant and the sponsor should be invited to put forward any claims for DIBP 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.

Source: DIBP