If you need to lodge a partner visa application in Australia and you currently hold any bridging visa or you currently do not hold any visa at all, then you will need to satisfy the Schedule 3 requirements for your partner visa application.
This generally occurs if you are in Australia waiting for a Tribunal appeal hearing or Court hearing in relation to your visa refusal or cancellation, or if you overstayed your prior visa and you are currently unlawfully in Australia.
In this situation, you are allowed to lodge a valid partner visa application while you are in Australia as long as your prior visa refusal was not a partner visa refusal.
Generally speaking, in order to satisfy the requirements under Schedule 3, you will need to demonstrate that there are ‘compelling reasons’ that affect the circumstances of your application (‘compelling reasons’ requirement). There are no specific circumstances or events defined under the law as ‘compelling reasons’. Whether the circumstances of your application are considered to be compelling is at the discretion of the case officer that assesses and decides your application.
If the Department sends you correspondence to address this requirement, then you likely will receive a request like the following example:
As stated in the above example of the Department’s correspondence, visa application and circumstances are considered on a case by case basis.
If you currently do not hold any visa and you are unlawfully in Australia, then the Department will also likely ask you to provide an explanation in relation to why you overstayed your last visa and became unlawful.
The Department’s current policy guidelines indicate that the existence of a genuine relationship and the hardship suffered from separation are not in themselves sufficient reasons to satisfy the compelling reasons requirement:
An example of where the circumstances may not be compelling to waive the Schedule 3 requirements may be where an applicant has remained unlawful for a number of years, made little or no effort to regularise their status and claims compelling circumstances on the basis of a long term relationship with their sponsoring partner and/or hardship caused by separation if they were to apply outside Australia for the visa.
With the intent of the waiver provisions in mind, it is generally reasonable to expect that compelling reasons to exercise the waiver provision exist where an applicant’s circumstances happened beyond their control. That is, circumstances beyond the applicant’s control had led them to become unlawful and/or prevented them from regularising their status through means other than the Partner visa application for which they seek the waiver.
For example, in the scenario given earlier, it is reasonable to accept that compelling circumstances exist to waive the Schedule 3 criteria if, for reasons beyond the applicant’s control – such as severe illness or incapacity – the applicant was prevented from regularising their status in the years they had been unlawful.
As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria. This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, whilst it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.
Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. This not only ensures fairness and equity to other applicants and discourages deliberate non-compliance, but also preserves the integrity of the Partner visa program in general and the waiver provisions in specific.
Matters that officers should take into consideration when assessing whether the applicant’s circumstances may be considered compelling include but are not limited to:
- any history of non-compliance by the applicant
- the length of time the applicant has been unlawful
- the reasons why the applicant became unlawful
- the reasons why the applicant did not seek to regularise their status sooner
- what steps, if any, the applicant has taken to regularise their status (other than applying for a Partner visa).
Will the Department approve my application?
The above policy guidelines essentially confirm that you need some ‘compelling reason’ that is beyond just your genuine relationship to satisfy this requirement, and ideally this circumstance should be one that is beyond the visa applicant’s control. Based on our experience with the Department’s assessment, we find that the following circumstances may satisfy the ‘compelling reasons’ requirement:
- Applicant and sponsor are looking after their Australian citizen child or children, where you can argue that the separation will adversely affect the Australian child or children, as well as requiring the sponsor alone to raise his or her child or children on a temporary basis for around 1-2 years and possibly longer given the Department’s processing times
- Applicant provides regular daily health care and household support for the sponsor, and/or other family members of the sponsor’s household
- Applicant is suffering severe illness or incapacity and is receiving treatment and support in Australia
You are allowed to rely on circumstances that occur after the lodgement of your visa application, as the compelling reason or a further compelling reason to satisfy this requirement. This includes events or circumstances that arise during the Department’s processing time, and the Tribunal’s processing time if you need to appeal. You are not limited to circumstances and facts that existed at or before the time of lodgement of your visa application.
Since the ‘compelling reasons’ requirement is assessed on a case by case basis, you can lodge an application and argue that any circumstance with a genuine relationship is compelling. However, the Department will generally refuse applications that are not consistent with their above guidelines.
Can I appeal to the Tribunal if the Department refuses my application?
If unfortunately your application is refused by the Department, then you can appeal this refusal to the Administrative Appeals Tribunal. The role of the Tribunal is to review the Department’s decision for refusing your application (or cancelling your visa), and re-decide if the Department’s decision was correct. The relevant Tribunal Member will assess and decide if your application satisfies the ‘compelling reasons’ requirement. If your hearing and appeal is successful, then AAT can make a decision in your favour and decide that the Department’s decision is incorrect and send the matter back to the Department for reconsideration. If the matter is sent back to the Department for reconsideration, then generally speaking, the Department will grant the visa.
What are the advantages/disadvantages of lodging onshore in Australia?
- You can continue to accumulate more time living together and evidence of your relationship for the purposes for your visa application
- You may be able to obtain a bridging visa with unrestricted work rights that allows you to stay in Australia until your visa application is decided
- If the Department refuses your application, then you can appeal to the Tribunal as explained above, and continue to live in Australia as a bridging visa holder until the Tribunal decides your appeal
- You need to satisfy the discretionary ‘compelling reasons’ requirement which would not apply if you lodged your application when you are outside of Australia
- You may not be able to travel overseas as a bridging visa holder (you will not be able to travel if you lodged and you were unlawfully in Australia at the time of lodgement)
What are the advantages of lodging offshore outside Australia?
- You do not need to satisfy the ‘compelling reasons’ requirement. You would just need to satisfy the standard requirements for an offshore Subclass 309/100 partner visa
- You may be able to apply for a visitor visa during the Department’s processing time, and see if you can live with your sponsor in Australia as a visitor visa holder for some of the processing time
- You will not be able to work if you are living in Australia as a visitor visa holder. You would only be staying in Australia as a visitor visa holder as you cannot obtain a bridging visa for your partner where you lodged an offshore partner visa application
- It may be difficult to obtain an Australian visitor visa if the visa applicant has prior migration compliance issues
- It may be best for the sponsor to travel and see the applicant overseas, and perhaps even do this on multiple occasions to demonstrate your relationship if the applicant is unable to visit Australia during the Department’s processing time
- It may be more difficult to accumulate strong and convincing evidence of your relationship due to the separation of the visa applicant and sponsor. You may have to make extra efforts with demonstrating your relationship such as regularly making international transfers to each other to demonstrate the financial aspect of your relationship
Lodging offshore application as a Bridging visa B holder
One possible way to lodge another visa application while you a waiting for an AAT hearing or Court appeal is to apply while you are outside of Australia. If you are currently holding a Bridging visa A or B, then you may be to apply for a Bridging visa B which allows you to temporarily leave Australia. This may allow you to lodge an offshore partner visa application when you are outside of Australia as a Bridging visa B holder, and then return to Australia on your Bridging visa B and remain in Australia while you wait for your AAT hearing or Court appeal.
This would allow you to both avoid having to satisfy the Schedule 3 and ‘compelling reasons’ requirement, as well as stay in Australia with your sponsor so that you can accumulate further evidence for your relationship.
Please note that by lodging a new visa application while you are outside of Australia, you will not be able to get a bridging visa that is linked to this offshore partner visa application. Your right to return and stay in Australia as a Bridging visa B holder is based on your need to be in Australia for your AAT hearing or Court appeal. Hence if your AAT hearing or Court appeal is not successful, and your Bridging visa is set to expire on a certain date after the AAT or Court’s decision, then you cannot apply for a new bridging visa on the basis of your undecided offshore visa application.
Please also see our other partner visa articles:
- Partner visa post outlining the main partner visa and sponsorship requirements
- Comprehensive 12 step guide for your partner visa application
- Preparing your supporting declarations and the information that you should include in your supporting statutory declarations
- Information in relation to preparing Form 888 and detailed example answers