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Case Highlights That Schedule 3 Waivers Are Not Easily Granted

What types of circumstances will be considered “compelling reasons” for not applying the criteria of Schedule 3, and thereby enabling an applicant for a Partner visa to remain onshore while the application is being processed?

This question is of more than passing interest, as of course it is not at all uncommon for a person who no longer holds a substantive visa to apply for a Partner visa more than 28 days after the prior substantive visa ceased.  In fact, it is a common occurrence that Partner visa applications will be made by applicants many years after their visas have expired, isn’t it?

So a case that was recently decided by the Federal Circuit Court, Prempree v Minister for Immigration & Anor (2017) FCCA (17 February 2017) provides some useful guidance to the question, and identifies some circumstances that may not amount to “compelling reasons” for the grant of a “waiver” of Schedule 3 criteria.

The circumstances in this case were as follows:  The applicant first arrived in Australia in June 2009, and in July 2012 she was granted a student visa which expired on 4 April 2014. In May 2011 she formed a relationship with her Australian citizen sponsor, and they were married in September 2012. However, she did not lodge her application for a Partner visa until 16 May 2014.

Unfortunately, the Partner visa application was not made within 28 days of the date that the applicant’s student visa ceased. 

There is no explanation in the FCC’s decision concerning the reasons why the Partner visa application was not lodged earlier.  It appears that the better part of 2 years went by between the marriage of the applicant and the sponsor and the lodgment of the application.  So without knowing all the details of the case, it seems like there may have been an opportunity to avoid the  complications of seeking a Schedule 3  waiver.

So, what reasons were advanced by the applicant in support of her application for a waiver in this case, and what success did they have?

First, the Tribunal found that the mere fact that the applicant was able to satisfy the other criteria for the grant of a Partner visa was not, in itself, to justify “waiving” Schedule 3.   In other words, the Tribunal concluded that simply being in a spousal relationship, however genuine, was not sufficient reason not to apply Schedule 3.  And of course, the FCC found nothing wrong with that conclusion – otherwise, every person who is in a genuine spousal relationship would be able to avail themselves of the benefit of a waiver.

The Tribunal also concluded that the length of the relationship between the applicant and her sponsor was also, not by itself, sufficient grounds for finding that there was hardship which would justify “waiving” Schedule 3.  Beyond the length of the relationship, there was “nothing particular about the nature of the relationship” that supported a finding of hardship.  And again, the FCC did not find this conclusion to be affected by “jurisdictional error”. So the lesson is, simply having a relationship of longstanding duration will not get an applicant over the hurdle, and entitle the applicant to a waiver of Schedule 3.

The applicant also advanced the claim that her purchase of a business while she was on a bridging visa (presumably granted in association with her application for the Partner visa) as a reason in support of her application for a waiver.  And this too failed. Before the Tribunal, the applicant argued that if she could not stay in Australia pending processing of her application, she could lose the capital that she had invested in the business.  It was claimed at the FCC level that the Tribunal had not considered this matter, and had therefore fallen into error.  But the record of the Tribunal proceeding showed that the Tribunal had considered this issue, so there was no error based upon a failure by the Tribunal to consider a relevant matter.

So, in the end, this case teaches us that stronger grounds are necessary in order to get a waiver of Schedule 3.  Being in a spousal relationship, even for a long time, and making a business investment in Australia (at least without evidence about what would actually happen to the business if the applicant is forced to go offshore while the Partner visa application is being reviewed, and without evidence that any Australian citizen or permanent resident would suffer a loss of employment) is also not enough.

The case does raise an interesting policy consideration, though: should people who are in a genuine relationship with each other be forced to be separated pending review of a Partner visa application just because the applicant has allowed a prior visa to expire and has not lodged the Partner visa application within 28 days thereafter?  Are there really sound reasons for this framework?  Does not the very long time period associated with the review of offshore Partner visa applications impose an undue and unjustifiable hardship on the parties to a relationship?

In view of the very high visa application charges now imposed by the Department for Partner visa applications, shouldn’t the Department at least do a better job of reviewing these applications in a reasonably timely way?

What do you think?

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