In Australia unlawfully and want to make a Partner Visa application?
DIBP recently introduced new policy in relation to what are “compelling reasons” acceptable to them in order not to apply schedule 3 criteria in respect of partner visa applicants under subclasses 820/801, who have become unlawful, or who do not hold a substantive visa.
There is a sub regulation relating to subclass 820 which dictates in almost all circumstances, where a visa applicant doesn’t hold a substantive visa, they must satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are “compelling reasons” for not applying those criteria. 3004 for instance can make it necessary for an applicant to prove that they are not the holder of a substantive visa because of factors beyond their control and that there are compelling reasons for granting the visa (as well as other requirements).
It had previously been the situation that the existance of an Australian citizen child of the sponsor and the applicant, or a long-term relationship between the two greater than 2 years, would be enough to satisfy the requirement for “compelling reasons“. Department policy now states however, that officers should be mindful that the intention of the waiver provisions “is to allow persons whose circumstances are genuinely compelling to regularise their status“. The policy specifically states that it is 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 offshore.
The policy gives an example of where the circumstances may not be compelling to waive schedule 3 requirements, as being, “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”. In other words, the existence of a genuine spouse or de facto relationship between the applicant and the sponsoring partner and/or the hardship that might be suffered by separation if the applicant were forced to leave and apply for the visa outside Australia will not be, in themselves, compelling reasons to waive schedule 3 criteria
Circumstances genuinely outside of the applicant’s control would include of course severe illness or incapacity, such that the applicant was prevented from regularising their status in the years during which they had been unlawful.
What is “compelling” is not defined within the legislation but there is some case law which suggests that it must be so powerful that it would lead the decision-maker to make a positive finding that the regulation should be waived.
Clearly, these matters are dealt with on a case-by-case basis, but it’s vital to examine why it might not be reasonable for the parties to be separated during the time that the visa applicant was forced travel overseas, if the sponsor could not go also. In other words, for instance, is there a particular relationship of care between the sponsoring the applicant, or perhaps, is the sponsor the sole person working to support the family, in circumstances where they could not work offshore?
Given that the visa application charges payable to DIBP just jumped by 50% in respect to such a visa applications, it’s vitally necessary that applicants in this situation consider their best options. It’s extremely unlikely that if the department found that there was no compelling reason to waive schedule 3 criteria and that accordingly the visa was refused, that this money (as well as all the professional costs and other outlays) would be recoverable.
Need advice and help? Contact Australian Visa Law.