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Long-standing relationship and persecution used to waive schedule 3 requirement at AAT

The Applicant came to immigration Solutions Lawyers seeking assistance with a Subclass 820/801 Partner visa on the basis of his relationship with an Australian Citizen.

A Subclass 820/801 partner visa is designed for Individuals who are married too or in a de facto relationship with an Australian Citizen, permanent resident or eligible New Zealand Citizen.

The Applicant had arrived in Australia on a Subclass 573 Student visa years earlier. During this time the Applicant and Sponsor met and entered into genuine and committed relationship. Throughout their relationship the couple became both emotionally and financially reliant on one another sharing household expenses such as their utility bills, rent, and weekly groceries. The couple decided to marry shorty after.

After some significant hardship the Applicant and Sponsor decided to get a divorce and continued with their separate lives.

Once the couple had spent a short time apart they reunited, rekindled their relationship and moved in with each other. At this time the Applicant lodge a Nomination under the Employer Nomination Scheme (857 visa) with a migration agent which was later refused. The Applicant later found that the Department had sent an email to the applicant through his Migration agent informing him of the nomination refusal and inviting him to further comment on other information within 28 days. The Applicant did not receive this letter, therefore leaving him outside the 28 day response period. The applicant then decided to appeal this refusal decision to the MRT (now known as the AAT).

During this time the Sponsor received her Australian Permanent residency and the Applicant continued to apply for a number of alternative visas. The couple soon decided to re-marry and lodge a Subclass 820/801 Partner visa.

The Department refused the 820 application as they believed the applicant was waiting for the sponsor to obtain her permanent residency. The Department stated that when the 857 visa application was refused, the applicant appealed this to the MRT, however withdrew this appeal due to lodgment of the partner visa. The Department noted that at the time the applicant’s last substantive visa ceased, the sponsor was not a permanent resident of Australia and thus was not eligible to sponsor the applicant for a partner visa. The department stated that the lodgment of the unsuccessful 857 visa to the MRT allowed the applicant to remain in Australia while the sponsor was able to become eligible to sponsor him for the partner visa application.

The 820/801 application was also refused due to the couple’s relationship history and not meeting the schedule 3 requirement of holding a substantive visa when lodging the partner visa. The Case Officer found that the Applicant and Sponsor did not provide evidence that they had maintained a marital like partner relationship and therefore did not accept that they been in a long-standing relationship.

The applicant sought the assistance of Immigration Solutions Lawyers for the preparation and lodgment of the refused partner visa decision to the AAT.

ISL point out that if the applicant was trying to manipulate the system’ by waiting for the sponsor to obtain permanent residency, he would have never divorced her in 2011. The applicant and sponsor genuinely worked things out and rekindled their relationship in 2013. In 2012, both the applicant and the sponsor applied for Regional Migration Scheme however the applicant’s RMS application was refused. The applicant genuinely thought this application was going to be approved and was very disappointed when it was not. Nonetheless, the applicant appealed this decision to the MRT as he honestly thought that he could win. However under the advice of his previous Migration Agent, as the sponsor was a permanent resident she could sponsor him. Therefore the applicant decided to withdraw the MRT application as his agent advised him to do so.

The team at Immigration Solutions were able to compile the necessary compelling evidence to prove that the Applicant and Sponsor were in a genuine long standing relationship. ISL also argued that the applicant would suffer financial hardship if he was to return to his home country, and also be persecuted due to his marriage to the sponsor as they were from different religion. Therefore the AAT decided to waive the schedule 3 requirement and remitted the application back to the Department.

Once remitted back, Immigration Solutions submitted further documents from the Subclass 820/801 Partner Visa application and awaited the result. Immigration Solutions were ultimately successful in securing the Subclass 820 and 801 Permanent Partner Visa for the couple.

Immigration Solutions Lawyers is one of the leading immigration law firms in Australia. Headed by managing director and principal lawyer Anne O’Donoghue, the firm has over 22 years of experience. The legal team at ISL are experienced in dealing with complicated matters and will do their best obtain a positive outcome for each and every case.

To find out more about Immigration Solutions Lawyers click here.

To read more of our successful cases click here.

Click here to read our article: Are you getting the right Immigration help?


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