Winning At the AAT: Overcoming The Obstacle of Schedule 3
It is not difficult to imagine that there are many cases where a person has remained in Australia as an unlawful non-citizen after the expiration of a previous substantive visa (for example, a student visa), has developed a relationship (and perhaps started a family) and then wants to get a partner visa to be able to stay lawfully in Australia. Of course, people who are in relationships will wish to avoid the period of separation that is associated with waiting for an “offshore” partner visa application to be assessed and determined – especially when the “processing times” for such applications can be very long (commonly exceeding a year). (I would suggest that all RMAs and their clients would agree that these processing times are unjustifiable, and that there is no reason on earth why an offshore partner visa application should take so long to be determined, but that is a matter for another day!).
Given the desirability of applying for the partner visa while onshore rather than from offshore, it is natural to consider – and it can be anticipated that clients will ask: “Realistically, what are the prospects of successfully getting over the “hurdle” of Schedule 3? What kinds of “compelling reasons” could persuade the Department or the Administrative Appeals Tribunal to “waive” the Schedule 3 criteria?
In a case that as examined last week, 1409924 (Migration) (2015) AATA 3088 (15 July 2015), we saw an example of a situation where the AAT determined not to grant a waiver from Schedule 3. In that case, the applicant and his sponsor had a child together who had a health condition that required special care. But because the child was born after the time that the application was lodged, and the AAT determined that the Schedule 3 criteria must be met at the time of the application (and thus not at the time of merits review before the AAT), it did not see fit to allow a waiver.
...