“Compelling reasons” in partner visa policy broadened
In March 2016, the Full Federal Court made a very important decision about Departmental policy in regard to compelling reasons in partner visa applications. This decision significantly broadened the circumstances which can be taken into account by the Department or the Tribunal in considering whether there are “compelling reasons” for waiving “Schedule 3” requirements. (These terms are discussed in more detail below.)
Which visa applicants are affected by this decision?
This decision affects some applicants for onshore partner visas (Subclass 820/801 visas).
What is the Schedule 3 requirements for Subclass 820/801 visa applicants?
Schedule 3 requirements are complex and are frequently imposed cumulatively. It is best to seek professional legal advice if you are required to meet Schedule 3 requirements.
One of the requirements for a Subclass 830/801 visa is that the applicant holds a substantive visa (or has held a substantive visa in the last 28 days) at the date that they apply for a partner visa. This is frequently referred to as the “Schedule 3 requirement” when discussing partner visas. If you cannot meet this requirement (or other Schedule 3 requirements applicable to you under the Regulations) you must demonstrate that there are compelling reasons for waiving Schedule 3 requirements.
A substantive visa is any visa other than a Bridging visa, a Criminal Justice visa or an Enforcement visa.
Compelling reasons for Partner Visas
As the term “compelling reasons” is not defined in the Migration Act or Migration Regulations it may be useful to consider the everyday meaning of “compelling”. Synonyms are: persuasive, cogent, convincing, irresistible and weighty. There are also important decisions made by judges, which have sought to define what compelling means. The Federal Court in the decision of Babicci v MIMIA (2005) stated that the circumstances must be so powerful that they lead the decision maker to make a positive finding that the regulation should be waived.
Departmental policy is that the issue of compelling reasons should be considered on a case-by-case basis.
Consideration by the Full Federal Court
The Full Federal Court in the case of Waensila v Minister for Immigration and Border Protection (2016) found that existing Departmental policy that restricted consideration of compelling circumstances to those circumstances existing at the time of the visa application was incorrect. It found that the relevant Regulations could allow the Department (or Tribunal on review) to take into account later circumstances as well.
Implications of this decision
The Full Federal Court decision of Waensila v Minister for Immigration and Border Protection (2016) is of great interest to people who are unlawfully in Australia or who hold a bridging visa, and wish to lodge a partner visa application.
There is often a long time lapse from the date of visa application until the date of a decision about the application. It is fairer to the visa applicants for a decision-maker to be able to take circumstances arising in this extended period into account. For example, in the case that was before the Full Federal Court, four and a half years had passed from the date the applicants had applied for the visa until the case came before the Tribunal. (The visa applicants then appealed to the Federal Circuit Court, and then to the Federal Court.) Obviously, many things can happen after the date of the visa application that could possibly be considered as compelling circumstances, such as the partners giving birth to one or more children, or one or both of them suffering ill health.
Seek professional advice
If you have applied for a Subclass 820/801 visa while on a bridging visa or unlawful in Australia, this decision may affect you. You may be able to make further submissions to waive the Schedule 3 requirements. You should seek professional legal advice if you think that this Full Federal Court decision affects you.
It can be very expensive and stressful if you do not comply with visa requirements, or do not meet time-frames for response. It is therefore very important to obtain professional legal advice about requirements of visas and how you can best meet these.
Brett Slater Solicitors are highly experienced in Partner visas, Schedule 3 requirements and family visas. If you or someone you know wants more information or needs help or advice, please contact us on 02 9299 5815 or email firstname.lastname@example.org.