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This was a case in which our client had previously received poor advice from a migration agent. As a result of this poor advice our client had applied for a temporary spouse visa in the belief that she would be eligible for temporary residency within 6 months of the application being made. The application for a spouse visa was rejected by Immigration because at the time of her application the applicant had not held a substantive visa for more than 28 days and therefore did not satisfy one of the requirements for the grant of this visa. Immigration made a decision that there were no compelling reasons to approve the application.
We were instructed by our client and her partner to take over the conduct of her case. We submitted that there were enough ‘compelling’ circumstances in our client’s case to justify waiver of the rule requiring that she hold a substantive visa when applying for the visa.
We made successful representations that our clients would suffer many hardships including financial and emotional hardship if the applicant was forced to travel overseas to make a spouse application. As an example of the hardship that would be suffered, we tendered evidence of the couple’s continuing IVF treatment and intention to have a baby. We explained that this process would be hampered, or stopped, if the applicant was forced to return to China. The tribunal agreed with us, and accepted that to discontinue the clients’ involvement in the program by not waiving the criteria would cause severe hardship.
The tribunal found that the scope of compelling circumstances which would justify a waiver of this criterion were broader than those contemplated by the original decision maker. With our help, the applicant won her case.
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