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Compelling Circumstances for a Schedule 3 Waiver

This case involved an application for a Partner visa where the Applicant was subject to Schedule 3 criteria.

The Applicant arrived in Australia on a student visa. When this expired, he applied for another which was refused due to his attendance record. However, his poor attendance was due to an injury that caused him severe medical issues. The Applicant submitted an application for review of the refusal on the basis of his exceptional medical circumstances. During this time the Applicant was on a bridging visa and he met the Sponsor. The Applicant and Sponsor entered into a committed long-term relationship and shortly after they were married.

On the advice of his then migration agent, the Applicant withdrew the application for review, and lodged an application for a Partner visa on the basis of his marriage to the Sponsor who was an Australian citizen. However, at the time of the application, the Applicant was still on his bridging visa which is not a substantive visa and therefore he was subject to Schedule 3 criteria. The Partner visa was refused as the delegate was not satisfied that the circumstances put forth by the Applicant were ‘compelling’ enough to waive the Schedule 3 criteria.

The Applicant then lodged an application for review of the refusal of the Partner visa to the MRT. ISL was instructed to represent the Applicant for the MRT review. ISL submitted that there were compelling reasons to waive the Schedule 3 criteria. Since the Applicant arrived back in Australia, he continually sought to rectify his visa status. He applied for the appropriate visas that allowed him to live, work and study in Australia. When the Applicant’s last substantive visa expired, he was placed on a bridging visa whilst he was awaiting review. First, ISL indicated that the Applicant had never been unlawful and had continually sought to regularise his visa status since the expiry of his last substantive visa. ISL argued that one compelling reason that justified the waiver of the criteria was the diagnosis of the Applicant’s step-daughter with a mental health disorder. As her step-father, he played a crucial role in her treatment and her hopes for recovery. Another compelling reason was that the Applicant and Sponsor were currently facing their last chance of conception through IVF; if the Applicant was repatriated, the couple would not be able to undergo IVF. Another reason was the significant psychological hardship that the Applicant and Sponsor would suffer if the Applicant were repatriated.

ISL was successful in having the tribunal remit the application for the Partner visa, with the direction that the Applicant met the Schedule 3 criteria.

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