Australian Immigration Daily News

Suppose you have a client who has entered Australia on a visa that is subject to a “no further stay”  condition (Condition 8503) but the client has managed to persuade the Department to “waive” that condition on the basis that “compelling and compassionate” circumstances have developed. 

Will the fact that the client has been able to get Condition 8503 waived also enable the client to get a waiver of Schedule 3  criteria on the basis that there are compelling reasons not to apply those criteria?  

In other words, if someone succeeds in getting Condition 8503 waived, does it mean that they are “automatically” entitled to a waiver of Schedule 3?  

What if a husband and wife have an “appalling relationship”?

Will that mean that a partner visa application will be “doomed to failure”?

Does the fact that the husband and wife have a “fundamentally flawed” relationship mean that they cannot, at the same time, have a “mutual commitment to a shared life together” – and thus cannot satisfy the criteria for a partner visa?

Sometimes, there are situations where it is extremely difficult, if not practically impossible, to get a visa application successfully “across the line”.  

That’s something that I don’t like to say (and perhaps I should have written that sentence in “invisible ink”!).

As lawyers and RMAs, we’re used to being able to find solutions and fix problems. 

I do not want to earn a reputation as “The Grinch That Stole Christmas”! 

And I do not want to cast a shadow over the upcoming festive season (for which I wish my devoted readers: “All the best”!!!!!) by this series of articles about partner visa applications that “did not work out”. 

It just so happens that some interesting cases in this area are showing up right now through the reports on Austlii. So, much as I would like to be in control of the docket of the Federal courts (wouldn’t all of you like to have another migrant-friendly judge on the Federal bench (vote for me!!)), the subject matter of the decisions that have been coming down is really not my fault – don’t blame me! 

As a lawyer, I have often found that I can learn a whole lot more by reading cases where “things went wrong” than cases where “everything went swimmingly” and someone “routinely” won their case. 

The cases where problems caused someone to lose in court can teach us a lot about the types of issues that can cause a visa application to fail. And so if we know about those problems, hopefully we can avoid them when we deal with our own cases. Or at least figure out if there’s any guidance we can give our clients to help them mitigate the problems with their applications, and improve their chances of getting a visa.  Or at least be able to advise our clients about the potential pitfalls or “landmines” in their cases, so they can know about the possible risk they face and make an informed judgment about whether they want to go ahead with the application notwithstanding the risks.  

In this regard, a recent case from the Federal Circuit Court – Zaoud v Minister for Immigration & Anor (2015) FCCA 3138 (25 November 2015) – makes for useful reading.