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Partner Visas: The Schedule 3 Factor

Genuineness of Relationship is not enough

Important placed on detailed and strong written submissions well supported by evidence

There are two pathways available for a partner visa, dependent on whether the visa application was started onshore or offshore. Onshore partner visa applications take the form of a temporary Partner visa (subclass 820), which in turn leads to a permanent partner visa (subclass 801). An offshore partner visa takes the form of a provisional partner visa (subclass 309), which then transitions to a permanent partner visa (subclass 100).

Partner Visas subclass 820 and 801

Eligibility for a temporary subclass 820 and permanent 801 visa entails the applicant and their sponsor showing the Department of Immigration and Border Protection that they are in a genuine and ongoing relationship, consenting freely to the relationship and to the exclusion of all others. As such, eligibility for this visa process requires that the applicant is the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand Citizen.

Other factors which determine eligibility include certain health and character requirements, including partaking in and signing an Australian Values Statement.

Schedule 3 of the Migration Regulations 1994

When applying for an Australian Partner Visa, additional criteria is imposed on applicants who are not a holder of a substantive visa, such as where the applicant is unlawful at the time they apply or have been on a Bridging Visa for in excess of 28 days. This is known as Schedule 3 criteria.

Therefore, if an applicant doesn’t satisfy Schedule 3 criteria of the Migration Regulations, they must demonstrate that compelling and compassionate circumstances exist for not applying Schedule 3 to their application.

A recent case

In the past weeks, the merits review stream of lawyers and registered migration agents at Immigration Solutions Lawyers successfully assisted a client to appeal against a decision by the Department of Immigration and Border Protection whereby a Partner Visa (subclass 820/801) application was refused on Schedule 3 grounds. In this case the client had lodged her visa application while not holding a substantial visa.

In appealing against the refusal decision, the applicant had to demonstrate that there were compelling and compassionate circumstances at the time of decision. As such, the Immigration Solutions Lawyers’ team were able to successfully argue that the Visa Sponsor was financially, emotionally and physically dependent on the Review Applicant due to his medical circumstances. The team were also able to further mitigate the Review Applicant’s lengthy immigration history, which included a Protection Visa and a Federal Court application.

Consequently, the applicant received an oral decision on the day of the hearing at the Administrative Appeals Tribunal (AAT), which an extremely rare occurrence. This was achieved as the Tribunal Member was compelled by the strength of the submission and the circumstances of the Applicant and their sponsor’s circumstances.

The matter has now been remitted back to the Department for assessment as to the genuineness of their relationship.

How can Immigration Solutions Lawyers help you?

Here at Immigration Solutions Lawyers, we pride ourselves in providing expert, specialised advice. We understand how important having your family to support you in a foreign country is, so don’t compromise on your happiness. Here at Immigration Solutions Lawyers, we understand that your success is our success.

Therefore, if you require any assistance in applying for, understanding, or appealing a family visa application, contact us on 1300 428 472 or on our contact page.

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