One of the areas I specialise in is difficult partner visa applications, and the Schedule 3 regulations are a common area problem area for onshore partner visa applicants. When an applicant applies for an onshore subclass 820/801 partner visa and at the time of application either holds only a bridging visa, or holds no visa, this activates the Schedule 3 provisions of the Migration Regulations 1994 (Cth) which can be very challenging to navigate successfully.
I’ll be writing a more extensive article on Schedule 3 and partner visas, but the short version is that if you are affected by Schedule 3 and you apply for the partner visa more than 28 days after you last held a non-bridging visa (aka “substantive visa”), you will need to establish “compelling reasons” why you (the applicant) cannot go offshore and lodge an offshore partner visa. If you are not able to establishing compelling reasons to get a waiver of the Schedule 3 regulations, the partner visa will be refused. To show compelling reasons, you’ll need to state what they are and provide evidence that they are real and that they exist as you claim they do.
What are compelling reasons? There is no legal definition for the term. There is some case law including the cases of Babicci that sets the bar pretty high for Schedule 3 compelling reasons waivers, but it is largely up to the case officer (DIBP) or the AAT Member if you are making a Schedule 3 case at the AAT Tribunal. It comes down to the opinion of the case officer or member, and opinions are very hard to predict. They’re also hard to influence – after all, if you like chocolate ice cream and I don’t, you’re going to have a hard time convincing me that chocolate ice cream is yummy.
Let’s start with what is not likely to work in terms of arguments you might make when you get the dreaded “Invitation to Comment” 28-day letter from DIBP sometime after lodging an onshore partner visa:
We have a genuine relationship! Unfortunately this has no chance of success, because a genuine relationship is considered a requirement for a partner visa anyway. In fact, DIBP assesses the Schedule 3 aspects of an application first before they make any determination about the genuineness of the relationship, so if DIBP has sent you a Schedule 3 letter, it’s likely they haven’t even looked at your relationship evidence yet.
If the applicant goes offshore, we won’t be able to afford the bills/mortgage/rent/etc! This is another area where DIBP and the AAT have historically had no sympathy, as they take the position that any financial obligations are matters that the applicant entered into voluntarily before they had their visa granted, therefore the responsibility is on the applicant.
If we both go offshore, my sponsor will have to leave his job/house/family/etc! DIBP and the AAT take the position that there is no requirement that the sponsor leaves with the applicant, and that time temporarily apart is common for offshore partner visa applicants.
You may at this point be thinking, “Wow, how does anyone possibly get a waiver of Schedule 3?” Well, waivers happen and compelling circumstances exist that satisfy DIBP and/or the AAT – the key is finding them if they exist in your case. You need to thinking about all the negative impacts on any persons, especially Australians, that could happen if the applicant went offshore and lodged an offshore partner visa application. Here are a few
Emotional hardship, especially for the sponsor – if the sponsor or applicant has a history of emotional or mental health issues and a psychologist or psychiatrist states in a letter that these problems could be made substantially worse by the applicant having to go offshore and wait 1-2 years for an offshore partner visa to be approved, this could be a possible basis for a Schedule 3 waiver. Hint: try not to use letters from a GP unless you have no other choice, as DIBP and the AAT more and more are concluding that GPs will write whatever the patient asks, and therefore they are often giving very little weight to GP letters. Go for a specialist letter for the most impact.
If the applicant is pregnant or the applicant and sponsor have a child of the relationship or substantially care for a child together – the impact on a child can be one of the most powerful Schedule 3 waiver arguments because of Australia’s obligations under various human rights agreements and because the rights of a child can often jump to the top of the list of priorities if an applicant and sponsor together care for a child. Pregnancy is not always successful at Schedule 3 waivers, but can be especially if the expected date of delivery would be after the applicant would have to leave Australia. Having a newborn child is also not always successful, as DIBP and the AAT seem to as of late be trying to push the idea that having a child is not a magic solution to Schedule 3 issues, however children still remain a powerful argument in Schedule 3 waivers, perhaps the strongest argument.
Dangerous circumstances in the applicant’s home country – this can be effective if it can be clearly demonstrated that the applicant will face some sort of substantial threat if they return to their home country. Unlike the threshold for protection visa claims, the bar is generally lower for Schedule 3 claims of dangerous condition at home. Nonetheless, a successful argument in this area still requires good evidence.
There is no limit to the arguments you can make to try and get a Schedule 3 waiver – however as you go forward, try to focus on things that are beyond the control of the applicant and sponsor, circumstances that are dire and unusual, or circumstances involving children, older people who depend on the care of the applicant or sponsor, or circumstances where there is an established history of some sort of problem, condition, dependence or other circumstances where there’s good evidence available to show that whatever circumstances you are claiming cannot be seen by DIBP or the AAT to have been concocted or put together just for the benefit of a Schedule 3 waiver.