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Waiver of schedule 3 criteria due to emotional dependence - waiver granted

The applicant was originally in Australia on a tourist visa. During his trip, he met the sponsor and the two began a relationship. The couple eventually married, and now the applicant wished to apply for an 820 Partner Visa.

The issue was that the applicant had overstayed his original visa. In order for this application to be successful, not only did the applicant need to satisfy all the usual requirements of an 820 visa, he also needed to show compelling reasons which justified the waiver of the Schedule 3 (unlawful citizen) criteria due to his overstay.

The original application was refused because the decision-maker found no such compelling or compassionate reasons. Specifically, the decision-maker was not satisfied that the visa applicant’s relationship with the sponsor was of 2 years duration and noted that there were no children from the couple’s relationship. The couple wished to review the matter and sought our assistance in preparing the review.

In our submission, we argued that the couple had indeed been in a relationship for two years even though they had maintained separate residencies for almost a year of that period. Although they lived separately, they spent all their time together and stayed together every night, including cooking, shopping and attending to other household duties together. We submitted evidence that the sponsor was also providing the applicant with financial support during this period also.

We further emphasised the sponsor’s emotional dependence on the sponsor. We explained that shortly before the time of application, the suffered a miscarriage. The applicant fell pregnant again later that year, though sadly she suffered another miscarriage. We argued that these events caused the sponsor severe emotional strain and she relies heavily on the applicant for emotional support. We further emphasised the couple’s desperation to conceive and highlighted the importance of them to remain together.

The Tribunal accepted both of our arguments and the application was remitted to the Department for reconsideration with the direction that the Schedule 3 criteria be waived.

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