Australian Immigration Daily News

What evidence is needed to win a “Schedule 3” case?

Exactly what kinds of circumstances might be considered to provide “compelling” reasons for the Schedule 3 criteria not to be applied, so that an applicant for a Partner visa who does not hold a substantive visa may remain on shore in Australia during the all-too-lengthy period when the application is being assessed?

Unfortunately, there is no definition in the Migration Act or Migration Regulations of the meaning of “compelling”, no objective standard, and no “magic formula” or “recipe of facts” that will drive a conclusion that the circumstances in any case are so persuasive that the power to waive Schedule 3 must be exercised.

Beware, beware, beware, be aware!

So-called “time of application” criteria can be a genuine trap for the unwary, and can cause a visa application to blow up, with dire consequences for the applicants.

A case in point is a decision of the Administrative Appeals Tribunal that was recently brought to the writer’s attention by our colleague,  Dr Sirous Ahmadi (as of this date, not reported on Austlii).

Followers of this Website will recall that we have reviewed a number of cases where New Zealand citizens who have lived in Australia since early childhood have had their visas cancelled on character grounds. 

In the majority of those cases, challenges that have been brought against the visa cancellations have not been successful. 

This is what makes a recent decision of the Administrative Appeals Tribunal, in the case of Engi and Minister for Immigration and Border Protection (Migration) (2017) AATA (12 September 2017) unusual and remarkable. 

Who can meet the definition of being a “dependent child” in order to be eligible for a Child Residence visa? 

Clause 1.03 of the Migration Regulations 1994 defines the term “dependent child” to mean a child or step-child who is not in a spousal or de facto relationship and is not engaged to be married, and who falls into one of 3 distinct categories: 

* (a) the child has not yet turned 18 years of age;

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