Australian Immigration Daily News

Is it possible that there is anything that could be more frustrating in the “universe” of migration practice than for the Department to “doubt” the “genuineness” of a genuinely genuine relationship, and to refuse an offshore partner visa application that is genuinely meritorious? 

Bad, bad enough that the Department has seen fit to raise the application fees to a point where they cost an arm and a leg and another arm and another leg! 

And worse, worse yet that the Department’s processing times for these applications make “a snail’s pace” seem like “warp speed” – what on earth is it that makes review so beeping beeping slow?? 

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.

If a couple were to come into your office and tell you that they were legally married, had a child together, and had the results of a DNA test confirming that the husband was the father of the child, and they could tell you in advance that the Administrative Appeals Tribunal (AAT) would accept that their relationship was genuine, would you think to yourself: “There should ultimately be excellent prospects of getting a partner visa approved for these clients?”

Well, perhaps you have heard of the famous song from the Gilbert and Sullivan operetta “HMS Pinafore” called: “Things Are Seldom What They Seem”! A recent decision from the AAT, 1409924 (Migration) (2015) AATA 3088 (15 July 2015) provides an illustration (surely in the realm of migration law, but also commonly in daily experience) just how accurate the title of this song really is. Or to put it another way, as RMAs know, “Life can be full of surprises”!

On the surface of things, the story of this couple’s relationship, while not without its complications, seemed straightforward enough. And, as mentioned at the beginning of this article, even if the evidence wasn’t sufficient to satisfy the Department about the genuineness of the relationship, it was strong enough to convince the Tribunal member. The true problem was lurking at a deeper level – the dreaded “Schedule 3”!!!!!

The familiar expression that “timing in life is everything” is used so frequently because it is confirmed by our every-day experience.  But who would think that the truth of this saying would be demonstrated yet again by a decision of the Federal Circuit Court that is “buried” on the Austlii Website? Yet indeed, surprising as this may sound, a recent case, Isanan v Minister for Immigration & Anor, (2015) FCCA 1397 (29 May 2015) does provide another illustration of how critical timing can be! 

The Isanan case involved the refusal of a Permanent Partner Visa.  The applicant, Ms Isanan, was a Filipino citizen who held a Provisional Partner Visa (subclass 309). Her husband and sponsor died suddenly on the same day that she arrived in Australia. Ms Isanan sought to qualify for a Permanent Partner Visa (subclass 100) on the basis of clause 100.221(3)(b) of Schedule 2 of the Migration Regulations.  

 As will be well known to RMAs, one of the usual requirements for obtaining a Permanent Partner Visa is that at least 2 years must have passed since the application for the Provisional Partner Visa was made (see regulation 100.221(2)(c)). However, clause 100.221(3)(b) provides an exception to this “normal rule”.  Under the clause, an applicant can be eligible for the grant of a Permanent Partner Visa if the sponsoring partner dies after the applicant first enters Australia as the holder of a Provisional Partner visa. 

The Full Court of the Federal Court of Australia has ruled that there is no requirement under the Migration Act for two people to live together prior to lodging an application for a Partner Visa on the basis of a de facto relationship. The Court thus rejected an appeal by the Minister against a decision of the Migration Review Tribunal that reached the same conclusion. 

The Court’s decision in this case – SZOXP v Minister for Immigration and Border Protection, (2015) FCAFC 69 (11 June 2015) – is of obvious significance for all RMAs who are advising de facto partners in relation to Partner Visa applications. The case removes an obstacle to these types of applications, as it apparently has been the case that the Department has been refusing applications for Partner Visas in circumstances where the applicant and sponsor did not produce evidence that they had lived together before the application was lodged.

The background of this case was interesting in itself, as the applicant and his sponsor had chosen not to live together for religious reasons. The applicant was a citizen of China. He filed an application for a Partner Visa on the basis of his claimed de facto relationship with his sponsor in October 2012. The couple was married about a month after the visa application was lodged with the Department.