Planning to apply for a Partner visa: Beware of Schedule 3

If you are making an application for an Onshore Partner Visa 820/801, Schedule 3 criteria needs to be satisfied in most instances! In particular, the applicant will need to satisfy Schedule 3 Criterion 3001, which requires the application to be made within 28 days after the relevant day. Relevant day refers to the last day the applicant held a substantive visa.

If your previous substantive visa expired longer than 28 before you have made an application for the partner visa, then you fail to meet the Schedule 3 criterion unless compelling reasons exist for this. However, Compelling Reasons are not prescribed anywhere in the Migration Regulations 1994. Circumstances are therefore considered on a case by case basis. In addition, The provisions are not intended to facilitate persons who:

 fail to comply with their visa conditions or

 deliberately manipulate their circumstances to give rise to compelling reasons or

 can leave Australia and apply for a Partner visa outside Australia.

Although compelling reasons are not defined in the legislation, the Full Federal Court in Babicci v MIMIA (2005) stated that in any view the meaning of compelling ‘the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the regulation should be waived’.

The Migration Policy further states that 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, while 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. Previously, having a child or being in a relationship were considered compelling reasons. However, the present regulations are more stringent and thus does not take these as compelling factors.

It is thus very important to keep an eye on the expiry date of your existing substantive visa and aim to apply for the partner before the expiry of your existing visa. Although, onshore partner visas is one of the visas where you can apply onshore even after the refusal of any previous visa application ensure that you apply before the existing visa expires or at least within the 28 days after the expiry of your existing visas. 

Comments

By Jennifer Andrews on 7th Jan 2016

Thank you for the tip on schedule 3. Those dates can really mess with any kind of visa process. Getting a spouse visa can be a frustrating but looking out for information like this can really help.