When applying for a Partner visa onshore, it is generally recommended that the applicant is the holder of a current substantive visa. However, according to the Migration Regulations 1994 (Cth), where an applicant is not a holder of a substantive visa (meaning the applicant is an unlawful non-citizen or holder of a bridging visa) at the time of lodgement, they may still be eligible to be granted the Partner visa if they satisfy the Schedule 3 criteria. If satisfied, the Schedule enforces a time limit for the applicant to make their Partner visa application.
Nonetheless, the criteria set out in Schedule 3 can be difficult for many potential applicants to satisfy. However, under Schedule 3, the Minister has the power to waive these criteria where the Minister is satisfied that there are compelling reasons to do so.
On 17 February 2023, under Australia’s Freedom of Information scheme, the Administrative Review Tribunal (ART) published guidance on the interpretation and application of compelling circumstances in relation to onshore Partner visa applications.
This blog post will provide a summary of the information provided by the Administrative Appeals Tribunal on when Schedule 3 requirements can be waived. However, if applicants need specific information, tailored advice or assistance in relation to a Schedule 3 situation, they should contact an Australian Migration Lawyer today who can provide relevant information and representation on an applicant’s behalf.
Applicants should be aware that in October 2024, Australia’s appeals and review processes underwent a significant transformation with the introduction of the Administrative Review Tribunal (ART), replacing the former Administrative Appeals Tribunal (AAT). This change is designed to streamline decision-making and improve accessibility for applicants seeking a review of migration decisions. Although the ART is now continuing the work of its predecessor the AAT, the information provided by the AAT is still useful in understanding the complexities associated with applications involving Schedule 3 waivers. The Administrative Review Tribunal (ART) replaced the Administrative Appeals Tribunal (AAT) in October 2024. While the ART now handles migration review matters, the AAT's earlier guidance on compelling and compassionate circumstances for Schedule 3 partner visa waivers remains a relevant reference for understanding how decision-makers approach these applications.
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If you are interested in getting more information about a visa, get in touch with Australian Migration Lawyers for a consultation.
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Schedule 3 Requirements
Under Schedule 3, unless waived by the Minister, potential onshore Partner visa applicants will either need to:
- Be the holder of a Diplomatic (subclass 955) visa or as a Special Purpose visa holder was a SOFA member or their dependent and satisfy criterion 3002
- Satisfy criteria 3001, 3003 and 3004
Criteria 3001:
The applicant must make their Partner Visa application within 28 days after becoming an unlawful non-citizen or after an overstay.
Criteria 3002:
- Make the application within 12 months after unlawful entry or overstay
Criteria 3003:
For criterion 3003 to be satisfied, all of the following must apply:
- The applicant became an unlawful non-citizen due to factors outside their control.
- There are compelling reasons to grant the visa.
- The applicant complied with the conditions of their previous visa.
- The applicant would have been entitled to a further visa.
- The applicant intends to comply with any conditions attached to a new visa.
- The applicant's last visa was not subject to a no-further-stay condition.
Criteria 3004:
For criterion 3004 to be satisfied, all of the following must apply:
- The applicant entered Australia unlawfully and has not subsequently been granted a substantive visa.
- The applicant does not hold a substantive visa because of factors beyond their control.
- There are compelling reasons for granting the visa.
- The applicant has complied substantially with the conditions of their previous visa.
- The applicant would have been entitled to a subsequent visa.
- The applicant intends to comply with any conditions attached to a new visa.
- The applicant's last visa was not subject to a no-further-stay condition.
These requirements are arduous for any applicant to satisfy, and as a result, applicants will often seek to show that they have compelling circumstances not to be required to meet these criteria.
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General principles for ‘compelling and/or compassionate circumstances’
Within the Migration Act or the Migration Regulations, despite being terms critical to the waiving of specific requirements, ‘compelling’ and ‘compassionate’ are not specifically defined. As a result, it is a contextual case-by-case consideration made by the Minister or the Administrative Review Tribunal (ART), informed by the context the phrase is used in and the purpose of the provision the phrases is located. When considering the applicant’s situation, all of their circumstances must be accounted for
The use of ‘compelling’ instructs the relevant decision-maker to be demanded or forced to a particular conclusion out of moral necessity. The use of the word ‘compassionate’ instructs the relevant decision-maker to feel sympathetic or pity for an applicant’s situation. While the terms are often used together for cumulative effect, they do not have to be used together and where this is the case the other word should not be considered. Therefore, when compelling is referred to, the circumstances must be such that the decision-maker is heavily persuaded to come to a particular view.
As a result, it appears that the relevant decision-maker is required to meet a high threshold to waive a Schedule 3 requirement in any given circumstance.
Waiver in the context of an on-shore Partner visa
As stated earlier, the burdensome Schedule 3 criteria can be waived where the Minister is satisfied there are compelling reasons to do so.
The purpose of this waiver was to recognise that there can be potential hardships suffered by an applicant that would result in circumstances where an applicant should remain onshore when applying for a Partner visa, rather than being forced to leave. The Department of Home Affairs guides decision-makers to consider why the applicant became unlawful in Australia and what the circumstances out of their control are. Therefore, decision-makers should endeavour to consider all of the relevant circumstances of the applicant, including information available at the time of lodgement up to the time the decision was made. As long as the reasons exist prior to a decision being made, they are deemed to be relevant considerations for the purposes of determining whether there are compelling reasons to waive the various criteria.
While it is recognised that there are instances where compelling circumstances will not be found due to the inherent characteristics of the relationship (such as how long the relationship has been for or if it is genuine), the applicant’s circumstances should still be assessed on a case-by-case basis. Furthermore, a decision-maker when assessing if there are compelling circumstances should engage with the situation themselves and give all arguments and evidence genuine consideration.
Decision-makers are not required to consider international obligations or treaties when considering compelling reasons for the purposes of a Schedule 3 waiver.
Ultimately, decision-makers must not disregard substantiated reasons put to them, and must keep in mind that the purpose of the waiver is to avoid requiring applicants to leave Australia in circumstances where such departure would cause genuine hardship.
Common examples of circumstances that applicants have raised in support of a Schedule 3 waiver include: a child born of the relationship, a serious medical condition affecting the applicant or their partner, financial hardship that would result from departure, or a genuine long-term relationship where the applicant became unlawful due to circumstances beyond their control. The weight given to these circumstances depends on the individual case and the strength of the evidence provided. No single factor is determinative.
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How We Can Help You
As discussed above, it is possible for applicants who do not hold a substantive visa to have the Schedule 3 requirements waived when applying onshore for a Partner Visa. The legal framework governing these applications is complex, and the threshold for a successful waiver is high. Australian Migration Lawyers have the knowledge and experience to help applicants navigate this process, build a compelling case, and present all relevant circumstances effectively to decision-makers. Contact Australian Migration Lawyers today to discuss your situation. We are available seven days a week.
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