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Schedule 3 Argument Waiver: Unlawful stay

The Applicant was unlawful in Australia for about 10 years and wished to apply for an Onshore Partner Visa Application. To make such an application, the Department requires the Visa Applicant to be on a substantive visa at the time of lodgement. As the Applicant had been unlawful in Australia, it was not possible for him to apply for a visa application because he was not on any substantive visa, unless he was successful in waiving the criteria.

Our office submitted a request for this requirement to be waived, by proving to the Department the compelling and compassionate circumstances surrounding the Visa Applicant and the Sponsor. By collating the opinions of medical professionals, and evidence conveying significant hardship on the couple and their children, our office was able to present arguments to the Department to allow the Applicant to apply for a Partner Visa despite having been unlawful in Australia for 10 years.

This case demonstrates the opportunity for unlawful non-citizens to apply for visas onshore. Furthermore, this case is also an example of a couple’s ability to lodge a partner visa application despite having been previously divorced – the Applicant and Sponsor in this case had married in their home country and had two children from this marriage. The Sponsor came to Australia with the two children whilst the Applicant remained in their home country. Eventually, the couple divorced. However, just recently, the couple has reunited and have resumed their relationship. ISL was asked to prepare an application for an 820 partner visa so the family can stay together in Australia.

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