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Another Case Illustrates Schedule 3 Hurdles

There has been another decision from the Federal Circuit Court that illustrates yet again that there is a high hurdle that must be overcome to obtain a “waiver” of Schedule 3  requirements by applicants  for Partner visas.

And this high hurdle continues to exist notwithstanding the decision of the Full Court in the Waensila case in March 2016 that the circumstances that are to be reviewed to determine whether there are “compelling reasons” for the grant of a “waiver” are not limited to those that were in existence at the time that the application for the Partner visa was lodged, but encompass any circumstance that has become extant at any time prior to the time that the decision whether to grant the “waiver”  is made.

The case that demonstrates the difficulties facing those seeking a “waiver” was Sohi v Minister for Immigration & Anor (2017) FCCA 1450 (12 June 2017) (reported on Austlii on 29 June 2017).

The applicant’s immigration history was somewhat on the “unusual” or “wacky” side. Ready for it?

The applicant originally arrived in Australia with her then-husband, with each holding a student visa, in June 2009.  Her student visa was cancelled in November 2010,  and she was then granted a Bridging Visa E on the basis that she was “making satisfactory arrangements to depart Australia”.  She then obtained 2 further Bridging Visa Es, and spent 2 periods of time in Australia  as an unlawful non-citizen.

Also: the applicant and the husband with whom she travelled to Australia divorced in June 2011. She met the sponsor of her Partner visa application in May 2010, and in May 2011, they committed to a long-term relationship. 

Then, in October 2011, the Department apparently “caught up” (in the words of the Court) with the applicant concerning her illegal migration status.  At about that time, the applicant married her sponsor and lodged her application for the Partner visa.

It then took the Department more than 2 years to review the application. It was refused in 2014; the case then went to the Tribunal, which affirmed the refusal in May 2015; the Tribunal’s decision was quashed by consent on Waensila grounds, and finally, in October 2016, the Tribunal again affirmed the refusal.

So, the journey from the original lodgment of the visa application until the second Tribunal refusal took 5 years!

After the second Tribunal decision, the applicant took the case to the Federal Circuit Court, seeking to have the Tribunal’s decision to refuse to grant a waiver of Schedule 3 overturned.

These were the circumstances that were put to the Tribunal in support of the request that Schedule 3 be waived:

  • The age of the sponsor (he was 74 years old at the time of the hearing before the FCC);;
  • The longstanding nature of the relationship (5 years by the time that the case came back before the Tribunal for the second time) and the likely long processing time if the applicant were to be forced to re-apply from overseas;
  • The sponsor’s health issues, which consisted of problems with a knee which made it difficult for him to move about;
  • The alleged fact that a migration agent had “misled” the applicant and the sponsor about whether there would be difficulties associated with Schedule 3.

Unfortunately for the applicant and sponsor in this case, the circumstances that they relied on were not considered enough.

Their barrister argued to the Court that the Tribunal’s decision was so manifestly unreasonable that no reasonable decision maker would have made it – in other words, that the Tribunal’s decision was infected with what is known as “Wednesbury unreasonableness”.

However, the Court was not persuaded by this submission.  It took the view that even though the Tribunal’s decision might be seen to be “harsh or even heartless” is was not a decision for which there was no logical basis , and it was “open” to the Tribunal on this evidence to conclude that compelling reasons for waiving Schedule 3 did not exist.

The lesson here is that the mere fact of a longstanding relationship between an applicant and sponsor , or apparently relatively minor health problems of the sponsor (like in this case, a knee ailment that limited the sponsor’s mobility); and the sponsor’s advanced age are likely not going to be enough to get Schedule 3 waived.

It's going to take more!

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  • Guest
    Paul O Wednesday, 05 July 2017

    The question of Compelling is now almost impossible to meet. One looks at this decision and wonders what the difference between heartless and compelling really is.
    If a person makes a heartless decision is that not a basis of compelling by logical reasoning? “harsh or even heartless” so what does it take for compelling reasons?
    It is clear no reasonable person would come to this conclusion put forward by the court. You send a 74 year old away from his spouse to another country, separating them, they will have enormous grief and possibly lead to death of one or both. That is definitely a compelling reason. Mistreating elderly cannot be considered to be not compelling.

  • Guest
    Frank Richter Wednesday, 12 July 2017

    He can still apply for partner visa but offshore. There is no legislation that describes compelling circumstances, and even PAM 3 basically states that any condition regarded as compelling can be negated by the applicant's visa history/situation.
    I have just received notice under S57 natural justice in similar situation where applicant has long period of unlawfulness, but despite they have a small baby 6 months old department is still negating this with his migration history and their current situation. A few years ago small medical problem would achieve waiver , now it is much more difficult

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