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Case Illustrates High Standards for Schedule 3 Waiver

Another day, another decision that illustrates the obstacles to getting a “waiver” of Schedule 3 criteria!

The decision, Awad v Minister for Immigration & Anor (2017) FCCA 452, was handed down by Judge Driver on 10 May 2017.

This was the story: the applicant was a Lebanese national who originally arrived in Australia in February 2010 on a student visa. That visa ceased on 15 March 20102. He then applied for a further student visa, with that application also being made on 15 March 2012, but that second student visa application was refused. He then applied for a partner visa in July 2013, but in December 2014, the Department deemed that that application was “invalid” (why it took the Department approximately a year and a half to figure out that this application was “invalid” is not explained in the Court’s decision, but “whatever”.  Finally, the applicant re-applied for a partner visa in December 2014. It was that application which was the subject of the proceedings before the Federal Circuit Court.

Obviously, there were Schedule 3 issues in this case. The applicant’s last valid substantive visa, being his first student visa, had ceased in March 2012. He did not make a valid application for a partner visa until December 2014. So far more than 28 days had gone by since he had last held a substantive visa.

Unfortunately, for the applicant, he was unable to persuade the Tribunal that there were “compelling reasons” not to apply the Schedule 3 criteria.

The Tribunal concluded that:

  • Although the length of the parties’ relationship was a “factor to be taken into account”, it was not, in and of itself, a compelling reason to justify waiving Schedule 3;
  • Although the Tribunal accepted that the applicant’s wife suffered from anxiety and depression and that her relationship with her husband was a significant source of comfort to her, it noted that she had a close relationship with her family, had not required further treatment for her conditions, and had been able to continue full time study despite those conditions. It therefore concluded that the health of the applicant’s wife would not be placed at risk if the applicant were required to make his application from offshore;
  • Although the applicant and his wife were hoping to start a family and expand his business, and that having to leave Australia would impact those plans, the Tribunal found that the delay that would be caused to those plans was not a compelling reason to grant a waiver;
  • Although the parties were in a genuine relationship and would face emotional hardship if the applicant were required to apply from offshore, those emotional difficulties did not amount to a compelling reason to waive Schedule 3.

Interestingly enough, at the time of the Tribunal’s decision in April 2016, the applicant and his wife did not yet have a child, but one was born by the time the case came before Judge Driver for a final March of 2017.

Also, when the case was heard before Judge Driver, the applicant tendered a psychological report which suggested that the cause of his wife’s anxiety and depression was her relationship with her parents. The applicant therefore contended that it was unreasonable for her to be required to return to her parents’ care while he awaited the determination of an offshore partner visa application.

Unfortunately for the applicant, the Court (properly) concluded that it could not consider matters that had arisen between the time of the Tribunal decision and the time of the hearing before the FCC. The only question that could appropriately be heard by the FCC was whether the Tribunal had committed jurisdictional error on the record before it. And Judge Driver determined that no jurisdictional error had occurred.

Judge Driver did note that it would be open to the applicant to bring the matters of the birth of the child, and the unsuitability of leaving his wife in her parents’ care, to the Minister through a request for Ministerial Intervention under section 351 of the Act.

Would anyone care to venture an opinion on the likelihood that the Minister would intervene in a case of this nature?

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  • Guest
    Khalid Monday, 15 May 2017

    Peter Dutton?! Good luck

  • Guest
    Paul O Thursday, 18 May 2017

    It seems the word compelling is now meaningless in the Migration Regulations.

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Guest Thursday, 24 May 2018
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