Schedule 3 | Compelling reasons

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.

Schedule 3 | Partner visa

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:

Schedule 3 request

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.

John Doe


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.

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Comments

8 Comments

Ka Man · June 18, 2019 at 12:19 pm

Hi I’m Australian citizen. I had enquiry for my partner ( him ). We are planning to get marry end of this year, apply partner visa. But my partner he is currently holding BVA with protection visa waiting from AAT case. We consulted a migration agent before, she advised us to submit partner visa offshore, we applied BVB through her, want to travel back my home city, meet my parents to discuss our marriage, but come up BVB not grant. is it acceptable if we marry here and submit onshore?. Thanks

Jackie · May 18, 2019 at 10:38 pm

Hi
My partner “s student visa was cancelled due to provide false document /information in her working holiday visa few years ago
We are in the process of AAT review
She is also having counceling about her PTSD … is it a valid reason for the scdeule 3 waiver for partner visa application later on.

Thanks a lot
Jackie

    Peng Cheng · May 19, 2019 at 9:50 am

    Hi Jackie,
    Sorry but to properly respond to your queries, I’d need to ask some questions and get some information/documents from you.
    Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
    PC

Andy · March 26, 2019 at 9:35 pm

Hi, I have applied for remaining relative visa as two of my siblings are in Australia and one in Europe. my parents were diseased. i have got the visa refusal and applied for AAT review. is there any chance i will win the AAT? if not what are the next avenue for me?
will i be able to apply for partner visa while i am onshore?

    Peng Cheng · March 29, 2019 at 1:50 pm

    Hi Andy,
    Unfortunately I can’t provide advice about situation just based on your comment information.
    Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your options.
    PC

Ian Peterson · March 8, 2019 at 12:23 pm

I am a retired exarmy Australian citizen I want my partner who is pregnant with my baby to come and live in Australia with me . I am on a army pension and don’t have $7000 dollars Wich is ridiculously insane.We have know each other since the 15 November 2018 I have just spent 2 months at her home and village and we have been for a ultrasound and have twins I want medical treatment eg ultrasound is there a waiver for fees or different visa to use.

    Peng Cheng · March 14, 2019 at 3:47 pm

    Hi Ian,
    Unfortunately there is no waiver available for the fee – the cost of a partner visa is fixed.
    PC

Comments are closed.