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Schedule 3 Waiver

This case involved a Schedule 3 waiver for a Partner visa application. The Applicant arrived in Australia on a Working Holiday visa purely with the intention of experiencing the country. However, the Applicant then met the Sponsor and they commenced a relationship.

The Applicant’s working holiday visa was close to expiring, but by then the Applicant and Sponsor were in a committed relationship, with the Applicant pregnant with the couple’s first child. Relying on the advice of the Applicant’s previous migration agent, the Applicant made an application for a Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa. The previous migration agent was concerned that the Applicant and Sponsor would not be able to meet the 12 month cohabitation requirement for de-facto relationships, so recommended that the Applicant register the relationship with NSW Births, Deaths and Marriages and wait until the relationship certificate was provided then make an application for a Partner visa. The Applicant did not realise that she would have been able to lodge the Partner visa without waiting for the Relationship Certificate to issue as long as the application had been made.

Upon realising that the advice she had been given may have been inappropriate, the Applicant immediately sought to rectify the situation. She lodged their 820 Partner visa application, but at the time was on a Bridging visa. After lodging her application, the Applicant instructed Immigration Solutions Lawyers (‘ISL’) to act for her. However, the Applicant’s Partner visa had already been lodged in excess of the 28 day period after the expiry of her last substantive visa. Therefore, the Applicant could not satisfy Schedule 3 criteria 3001.

In light of this, ISL submitted that there were compelling reasons to waive these criteria. First, the Applicant and Sponsor have been in a de facto relationship since 2013 and since then the couple have grown to rely on each other significantly. They were expecting their first child, and the Applicant would have experienced significant hardship if she was forced to leave the country. The Applicant was also currently experiencing medical issues with her pregnancy, and being forced to fly home would have placed the Applicant and the unborn child in significant pain and discomfort. If the Applicant was forced to leave, she would have also lost the support network she had built to assist her through her pregnancy. Being repatriated would have placed strain on the Applicant’s mental health as she would have lost the people she trusted to assist her through her first pregnancy.

Another consideration was the Sponsor’s position. He would have experienced significant emotional and professional hardship if the Applicant was repatriated. The Sponsor would have left the country to be with the Applicant as she was expecting to give birth and required the Sponsor’s support. However, this would have caused irreparable damage to the Sponsor’s business; the Sponsor owns a business which took many years to develop. He generated a large clientele network, a good reputation, and made significant investments in the business. If the Sponsor had been forced to leave the country he would have had to close the business, thus not only losing his clientele and established reputation, but also leaving his employees without work.

The Sponsor also had a child from a previous relationship. If he was forced to leave Australia, this would have emotionally, psychologically and financially affected his daughter.

After outlining this, ISL submitted that the Applicant and Sponsor’s circumstances were such that they were compelling under the old and new policy. ISL was successful in securing the Partner visa for them. ISL was instructed to act for the Applicant in September and managed to secure the visa grant by November; ISL always strives to lodge decision ready applications so the processing time is as short as possible.

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