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Schedule 3 Waiver: Conditions Outside the Applicant's Control

In this case, the Applicant was unlawful by the time she lodged an 820 Partner visa. ISL submitted that there were sufficient reasons why the Applicant was on a bridging visa when lodging the Partner visa application, and that there were compelling reasons to justify the waiver of the Schedule 3 criteria. ISL only commenced acting for the Applicant at the Schedule 3 requisition stage. ISL previously did not act for the Applicant.

The Applicant arrived in Australia on a subclass 572 student visa which was cancelled due to her attendance record. The Applicant applied for a review of the cancellation; her poor attendance was due to a combination of illness, injury and a family emergency. The Applicant then met the Sponsor. The Applicant was successful in having the decision to cancel the visa set aside, and had 28 days to lodge a new student visa. However, her previous migration agent failed to advise her of this and therefore she failed to lodge the application on time. The Applicant had already started cohabitating with the Sponsor when she lodged the new application for a student visa. As the 28 day period had expired, the application was refused. The Applicant applied for a review with the MRT which was unsuccessful, and then lodged a Ministerial Intervention request which was also unsuccessful due to the fact that the Minister thought that the Applicant may be able to lodge a valid Partner visa application. Acting on this advice, the Applicant and Sponsor lodged an 820 Partner visa application. However, by this time her last substantive visa had expired which prevented her from satisfying the Schedule 3 criteria 3001.

ISL was instructed to assist the client with a Schedule 3 Submission and submitted that there were compelling reasons to justify the waiver of this Schedule 3 criteria. The Applicant only became unlawful due to her previous migration agent’s failure to advise her of the 28 day period she had in which to lodge a new visa application. This happened for reasons outside of the Applicant’s control. Since then, the Applicant sought to rectify this by taking all the necessary steps to attempt to regularise her visa status. ISL also submitted that in the event of the Applicant being forced to leave Australia, she would suffer significant psychological hardship and her Sponsor would suffer significant psychological and professional hardship. The Applicant had been in an unhappy and abusive marriage before meeting the Sponsor which affected her psychological wellbeing. The Sponsor was the Applicants main source of emotional support.

ISL was successful in securing the grant of a Partner (Temporary) (class UK) Partner (subclass 820) visa.

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