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:
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:
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:
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.