Australian Immigration Daily News

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. 

But unfortunately having a practicing certificate or approval from OMARA as an RMA does not equip us with “super-powers” that will enable us to change the fundamental facts of a case (why not???), so that we can get a visa approval for our clients when in reality there is no viable pathway. 

The fact that there may not be a way to get an approval can be especially frustrating in the case of “on-shore” partner visa applications. I think that it is really horrible that people who are in a genuine, loving and committed relationship should have to be separated while the applicant waits for a seemingly interminable period of time for the Department to assess an off-shore partner application. Especially so since the visa application charges cost an “arm and a leg”. 

However, as a case that was decided last week – Arora v Minister for Immigration & Anor (2016) FCCA 87(19 January 2016) illustrates – there are occasions where that’s just the harsh reality, and the only way to get the partner application approved is if the applicant is off-shore. 

The circumstances in Arora were that the applicant was a citizen of India.  He originally arrived in Australia on a student visa on 29 June 2011. Unfortunately for his future prospects, the student visa ceased on that same day.  Therefore, from the moment he set foot in Australia, he was in a situation where he needed to apply for a further substantive visa urgently (within 28 days). In fact, I would observe that I find it somewhat surprising that he was able to pass through immigration clearance with a visa that was due to expire imminently. 

In any event, what occurred was that the applicant did apparently make some applications for further visas after his arrival in Australia. According to the Federal Circuit Court’s judgment, these applications were refused. 

Then, in August 2013, the applicant applied for a partner visa. 

The difficulty for him at that point was that he could not satisfy the criteria of Schedule 3. He therefore needed to demonstrate that there were “compelling reasons” for the Schedule 3 criteria not to be applied.  And compounding the difficulty, he also needed to show that these “compelling reasons” were in existence at the time of the application. 

On the face of the situation, it appeared that there were some compelling circumstances that might have justified a waiver of the Schedule 3 criteria.  These included the following: 

1. The applicant’s sponsor had suffered a miscarriage in April 2013 (several months before the application for the partner visa was submitted);

2. The sponsor claimed that the miscarriage had caused her to suffer significant psychological distress and required the applicant’s support

3. A psychologist had prepared a report stating that the sponsor’s mental health would suffer if the applicant were forced to return to India, and that the sponsor might be at risk of “self-harm”;

4. Additionally, the sponsor had suffered a second miscarriage in 2014; she had gall bladder surgery scheduled for May 2015; the sponsor and the applicant had married since the time of the application; and the sponsor was 43 years old with “a declining fertility window”. 

Unfortunately for the applicant and the sponsor, the Tribunal declined to take the “reasons” listed at 4 into account because they did not exist at the time of the application. The Federal Circuit Court found that it was proper for the Tribunal not to consider those matters. 

The Tribunal also did not consider the other “reasons” that were advanced on behalf of the applicant to be “compelling” either. 

First, the Tribunal did not accept that the first miscarriage was a “compelling circumstance” that warranted waiver of the Schedule 3 criteria. The applicant had asserted that the miscarriage had occurred while he was away in India between June and August 2013. However, the evidence before the Tribunal was that the miscarriage had actually occurred before the applicant had travelled back to India, in April 2013. On that basis the Tribunal found that the miscarriage was not, in and of itself, a compelling reason to waive Schedule 3. 

The Tribunal also did not accept the claim that the sponsor required the applicant’s support following the first miscarriage, because he had travelled to India and left the sponsor in Australia 2 months after this miscarriage had occurred. 

Lastly, the Tribunal placed no weight on the psychologist’s report about the sponsor’s psychological condition because the psychologist had only evaluated the sponsor in January 2015, and thus had no first-hand knowledge of the sponsor’s condition at the time of the lodgment of the application, in August 2013. 

So, what is the moral of this case, and the lesson to be drawn from this unsuccessful application?  

It appears clear from the history that this particular applicant was always going to be in a situation where he was going to need to get a waiver of Schedule 3, and thus to have to demonstrate that there were compelling circumstances to justify the grant of a waiver.  

Therefore, one might “postulate” that one strategy would have been to “defer” the partner application until he and his sponsor actually had a child (although this of course might have resulted in the applicant’s becoming an unlawful non-citizen). 

Or, alternatively, the applicant and sponsor might have undertaken a frank assessment of the circumstances that were in existence at the time that they were preparing to lodge the application and (perhaps) come to the conclusion that the circumstances were not sufficiently “compelling” to offer good prospects for getting a waiver of Schedule 3.  Had such a conclusion been drawn, then perhaps the applicant could have determined that the best course would have been to lodge the partner visa application from offshore in the first instance. 

If that course had been followed, one might speculate that the offshore partner visa application would likely have been approved long before the unsuccessful review proceedings concerning the onshore application were concluded before the Tribunal and the Federal Circuit Court. As it stands, the applicant will now have to go offshore in any event in order to obtain the partner visa, and if the visa is granted, he will have it much later than had he made the application offshore in the first instance.

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837