Login / Join
Australian Immigration Daily News
Breaking Australian immigration news brought to you by Migration Alliance and associated bloggers. Please email help@migrationalliance.com.au
- Font size: Larger Smaller
- Hits: 5897
- 24 Comments
Open Forum on Schedule 3
OK everyone, here’s an opportunity to share your experience, knowledge and wisdom with other RMAs, and with current or prospective visa applicants who may happen to be reading this blog!
Here’s the topic:
What has been your experience in getting a “waiver” of Schedule 3 from the Department or the Tribunal?
What types of circumstances have you found were sufficient to persuade the Department/Tribunal to waive Schedule 3?
What circumstances have not been accepted? Why?
What has your “success rate” been with Schedule 3 cases?
Have you “won” more often than you have “lost”? Or “lost” more often than you have “won”?
Why?
I am hoping that doing an “open forum” on this blog will encourage active discussion and exchange of ideas, and will be a means for RMAs to assist each other with these types of cases.
Are you all “down” to participate? I hope you will!!!
I raise Schedule 3 as a topic for discussion in part due to a case that was recently decided in the Federal Circuit Court, Tejada v Minister for Immigration & Anor (2017) FCCA 312 (10 March 2017).
Unfortunately for the applicant in this case, his attempt to get a “waiver” went down in flames.
But it does appear that the claim for the “waiver” was relatively weak.
As the decision in Tejada illustrates, there is a huge element of subjectivity in the process of seeking to have Schedule 3 waived.
As is well known, when an applicant for a Partner visa (Subclass 820) has “overstayed” a previous visa and has become an unlawful non-citizen, the applicant must either satisfy Schedule 3 (that is, usually lodge the application no later than 28 days after the previous substantive visa has expired) or demonstrate to the Department’s satisfaction that there are “compelling reasons” for “not applying” (“waiving”) Schedule 3.
The term “compelling” is not defined in the migration legislation.
It has been interpreted in the case law to mean that the circumstances must be “so powerful” that they lead the decision-maker to make a positive finding that the relevant criterion should be waived (See Babicci v Minister for Immigration & Multicultural & Indigenous Affairs.
Or as was said in Paduano v Minister for Immigration & Multicultural & Indigenous Affairs: compelling reasons means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria.
And as was observed in McNamara v Minister for Immigration & Multicultural & Indigenous Affairs: “The adjective “compelling” does not introduce an objective standard. The waiver decision will always involve a subjective judgment”.
Terrific! These cases then take us back to the “I can’t tell you what it is, but I know it when I see it” standard, or, alternatively, the Duck Standard: “If it quacks like a duck and swims like a duck, it must be a duck!”.
So, what Schedule 3 claims were advanced in Tejada?
These:
1. A routine report released on the Department’s Website in February 2014 unintentionally enabled access to some of the personal information held by the Department. The applicant claimed he was concerned that he could face a “real risk of harm” as the information could find its way not just into the hands of authorities in Peru, his home country, but into the hands of “foreign security and intelligence agencies, terrorist organisations and criminal syndicates. Fail. Rejected by the Tribunal.
2. The applicant and his sponsor had had a lengthy relationship and would miss each other if they were separated while the applicant re-applied from offshore. Epic Fail! Unfortunately, when one reads the cases one sees that time and time again, the separation of genuine couples pending the processing of an offshore Partner visa application will not be considered to be a compelling reason for waiving Schedule 3.
3. The sponsor would suffer psychological difficulties if she were to be separated from the applicant. The difficulty here was that the sponsor had only had one appointment with a psychologist, and the Tribunal found that she could learn “positive coping mechanisms” through further appointments in the future.
Reading this case as an “outside observer”, it does appear that the case for a Schedule 3 waiver was not particularly strong here.
What about you? Have you had better success?
Share your stories in the comments section!
Comments
-
Wednesday, 29 March 2017Hi there
I believe that there may be some prospects of success with such. 3 criterion waiver if the ex-visa holder had a family member who's incapable of looking after himself (in palliative care) and no no relatives in Australia. And the ex visa holder overstayed their visa genuinely to provide that support (emotional, financial, etc.) to their family member who would otherwise on his own.
I'm still a student therefore I never came across a real waiver yet but hope if there was a genuine intention that is compelling then the chance of getting the waiver is high. -
Wednesday, 29 March 2017
Hey guys,
I have had many wavers, certainly more successes than failures but at the AAT level, although two of those came back from judicial review and approved by the AAT on the second attempt. Of course, it has become easier after Waensila. Recently I had a case that I gave little chance of success. We had a psych report and history of counselling but no major mental health issues. Ironically, the government had saved my client's case. His wife was one of the recent 'victims' of a Centrelink overpayment notice in the order of about $10K and the husband (visa applicant) had made an arrangement to repay it. (I must say I have not been engaged to look at the issue of whether the raised overpayment was justified - the clients maintained that they religiously notified Centrelink of his wages). Nevertheless, this issue has tipped the Tribunal member over and we got the waiver. Of course, the length of the relationship and other issues were relevant factors.
Cheers -
Thursday, 30 March 2017I personally believe and am currently agitating an argument that says that Schedule 3 , by reason of the current iteration of policy is ultra vires the Act and the Regs. The provisions of section 48 which permit the making of an application for a spouse visa notwithstanding a previous application, and the likelihood that the applicant no longer holds a substantive visa came into existence in (9/09). The amendment to section 48 was completely in line with the 820/801 regs which permitted the making on an application even if you did not hold a substantive visa. The policy which is currently in place, to all intents and purposes through its attempts to limit the expression "compelling circumstances" to those articulated in the policy so distorts the facilitative provisions of the Act and the Regs to be wholly ultra vires.
The AAT tries to get around this argument by making no direct reference to the unlawful policy but through the process of examining the questions asked, it is obvious that the policy considerations are in play. Further the AAT has evolved a strategy in response to this argument by making findings that the relationship is not and never was genuine.
This conclusion is often reached by a process which constitutes, in my view, a quite cowardly attack on the credibility of the applicant with adverse findings concerning credibility. this allows the Tribunal to in effect dodge the bullet of the ultra vires policy. -
Thursday, 30 March 2017
Those are both interesting and important points raised by Christopher. I note that I received a call today from an RMA who advised that at a recent hearing his client, an applicant for a partner visa, was "grilled" by a Tribunal member about various alleged inconsistencies in his account of the relationship and social activities with his partner. I understand from this report that it is not uncommon for the Tribunal to search out such inconsistencies, and then rely on them as a basis for making adverse credibility findings and thus determining that the relationship is not "genuine". Perhaps the recent Aulakh case that I have discussed will provide an avenue for overcoming adverse credibility findings premised on inconsistencies that are not relevant or material to the application. From the report that I received from the agent it appears that all too often the Tribunal member is taking on the role of a contradictor rather than an impartial inquisitor. You have to wonder whether the current framework really does provide applicants with procedural fairness and a genuine right of review.
-
Friday, 31 March 2017
Has DIPB or the Tribunals changed a lot in last 3 years about Sch 3 when the issues really started. Then DIPB just used to refuse all applications if Sch 3 applied, but Tribunals were more reasonable? Three years back we won 2/2 cases in Tribunal.
In one case DIPB didn't bother as there was a child. -
Wednesday, 05 April 2017
The main issue is, who is the AAT Member ? ???? Subjective or Objective Assessment ...
Examples are give below:
AAT CASE NUMBER: 1515006 - Kira Raif finds: " In particular, the Tribunal does not
consider that the existence of a genuine relationship, of any length, is sufficient to establish
compelling reasons. It is the mere basis on which this application is made. In reaching this
conclusion, the Tribunal acknowledges that the Departmental policy previously referred to
long-standing relationships as being sufficient for the waiver, but the Tribunal considers such
policy to be more restrictive than the legislation and not consistent with it." And affirms the DIBP decision.
On contrary, in CASE NUMBER: 1515175, MEMBER: Nicholas McGowan finds, " The Tribunal accepts that in this case, the duration of the parties’ relationship is a compelling reason to not apply the Schedule 3 criteria. Accordingly, the Tribunal is compelled to not apply the Schedule 3 criteria in this case. The matter has been remitted. The Member did not consider inter caste, inter country and religious marriage to be compelling.
CASE NUMBER: 1514934, MEMBER: Glynis Bartley finds, "Taking the above evidence into account, in particular the length of the parties’ relationship, the Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, Mrs Tamang meets cl.820.211(2)(d)(ii)."
In CASE NUMBER: 1607195, MEMBER: Jennifer Cripps Watts, At [22] member says she needs to be" irresistibly satisfied " about compelling circumstances and did not consider any length of relationship compelling as well as the marriage between Hindu and Muslim from two different countries and the persecution they fear in their country of origin to be compelling. Rather, the Member finds, the applicant can go to THIRD COUNTRY to apply for visa.
To my surprise, in CASE NUMBER: 1611747, MEMBER: Robert Wilson has found all the REASONS, length of relationship. inter caste/religious marriage etc to be COMPELLING.
IN my opinion, Schedule 3 is being used to DETER others, not in accordance with the policy. The assessment can be found subjective and ALL DEPENDS ON THE MEMBERS' PERCEPTION.
How can we advise the clients if the outcomes of are contrary and inconsistent ??? -
Friday, 07 April 2017
Hi Shamser -
Great post. I have to wonder whether the interests of justice are being met when such vastly different results come from the same law. But then again, what can be expected when when the legislation uses words like "compelling" and "genuine" which have no definition under the law, thus leaving interpretation completely up to the decision maker. The "deletion" of Schedule 3 policy from Sch2 for the 820 visa in 2014 created a vacuum which has been filled by wildly differing interpretations of Schedule 3 by an array of decision makers at DIBP and the AAT. -
Friday, 07 April 2017
Absolutely, Mark. The policy definition was either long term relationship (usually for 2 years) or Australian citizen child born or any other ...).
I had a similar case, which was dismissed by Federal Court stating that "hard cases make bad laws".
I wonder whether "absolute power corrupts absolutely." -
Friday, 07 April 2017
I've had good success with referencing the Explanatory Note to the legislation which passed the Schedule 3 waiver provisions as that cannot be ignored or deleted by the Department - it specifically references long term relationships and relationships where there is a child of the relationship. The old Sched 3 policy pre-2014 was great - exceptions for cases where the sponsor needed to be with the applicant offshore and the sponsor's business or finances would suffer, etc. Now a completely different ballgame.
-
Monday, 11 September 2017
Hi
Me and my dad visa got canceled because a mistake that my mum made when she apply to come to Australia
I took it to tribunal and I lost the case I applied partner visa and got refused because my miss didn't update the address and and didn't update her mutual status
My misss got a history of turner sindrom as well as some memory Loss that immigration says she can live with
I took it to trubrunal with a psychiatrist report
My tribunal case on 26/9 with member by name Russell Matheson
Any recommendations I need to do or any docs I need to get
I have been with my miss since 2012 with defato certificate from 2015 and full joint bank account and strong history from April 2015 till now -
Monday, 25 September 2017
Does anyone know how long it takes for a case officer to pick up your case at AAT after you have been given 'compelling circumstances' on your case. I put in my case in January 2017, then 4 weeks ago got given priority processing due to medical grounds for my teenage daughter not coping with the delays causing severe anxiety issues. Anyone have any approximate ideas? Is is weeks or still months to wait? Thankyou for any help or advice
-
Monday, 25 September 2017
Hi Amanda -
This typically happens in a matter of weeks once priority processing is granted, perhaps 4-8 weeks, so I expect there is a reasonable chance you'll hear from them in the next 4-6 weeks.
Mark Northam
Solicitor and Registered Migration Agent
MARN 1175508
www.mnvisa.com -
Sunday, 11 February 2018
Hi,,, would is possible to waive a Schedule 3 criteria 3002,, VISA SUBCLASS 461 NEW ZEALAND CITIZEN PARTNER ??????? PLEASE HELP URGENTLY
-
Sunday, 11 February 2018
Hi Laki -
Unfortunately there is no waiver provision for Schedule 3 elements for the subclass 461 visa - you may want to check with a migration agent to ensure that you are actually subject to the Schedule 3 elements of this visa. Depending on your circumstances you may want to consider lodging offshore or look at other strategies.
Mark Northam
Solicitor and Registered Migration Agent
MARN 1175508
www.mnvisa.com -
Sunday, 20 May 2018
Hi! I was a student in Australia for 3 years and complied with all rules. Before my student visa expires I applied for a sponsorship visa through a company, however it shut down. I was under a Bridging Visa for 4-5 months, when I applied for a Partner Visa. I got a natural justice letter less than 2 months after lodgement of the partner visa asking for my compelling reasons. I sent the answer and it’s been already 13 months with no answer. Is it a good sign or it is just how Immigration has been working? Thanks
-
Monday, 21 May 2018
Hi Juliana -
While there are few certainties with visa processing these days, we've seen that lengthy delays after lodging a Schedule 3 waiver submission can often (but not always) mean they have decided the grant the waiver. That being said, it appears that DHA has large backups in the partner visa area and long delays may mean not signify anything in particular (!) -
Tuesday, 22 May 2018
Hi Mark, thank you very much.
Is it a good idea send Immigration an email kindly asking for an update? -
Tuesday, 22 May 2018
You can try, but they routinely ignore emails asking for status and/or update.
-
Thursday, 24 May 2018
I see, thanks Mark.
Immigration blog
The Tribunals have come up with a novel strategy to deal with circumstances which are clearly compelling ( Australian citizen child) in the context of a spouse 820/801 and schedule 3 by avoiding having to consider the issue by making a finding ( generally credibility0 to the effect that the relationship is not, nor has it ever been genuine.
This craze which is currently sweeping the Tribunal had an earlier iteration in spouse cases where the applicant was claiming family violence and the independent expert made a positive finding only to have the Tribunal determine that the relationship was not genuine or that the family violence happened after the relevant violence.
If this is not enough then the habit of the department is denying access to the Part A of the referral to the IE and then to cloak that part of the referral in a Section 375 certificate denies applicants procedural fairness and permits Border force to in effect "poison the well' so that the IE falls in line with the Border force view that claims of family violence represent an imposition on the department and constitute an integrity issue which undermines the migration program. Further, the Tribunal routinely fails to comply with the requirements of sections 359 and 359A and refers matters to the IE without first asking the Applicant in accordance with the procedure set out in Sok's case.
in short the Tribunal and some of its members seem hell bent on refusing Spouse applications and I have seen recent decisions which talk about the documentation provided in terms of the statutory shopping list at regulation 1.15A(3) as " not being dispositive" which means that even if you have all the documentation which suggests that you are in a genuine and ongoing relationship, then because that documentation is easy to obtain then the Tribunal does not give it any weight.
This is, of course, completely insane and is a pupil from the same school of thought which says.."This application is perfect...I am going to refuse it...it is clearly too good to be true."
The Tribunals need to stop having their CPD delivered by integrity officers from Border Force and need to be independent of DIBP.
Further, there are members of the Tribunal who are almost incapable of being persuaded that Tuesday is the next day after Monday and who would prefer to make findings adverse to the credibility of an applicant or a sponsor or both rather than act fairly and independently.
I do not know what the solution to this problem is but I would have thought that a recruitment policy which does not favour political appointees and members who have a high work load and proven track record in refusing cases would be a step in the right direction.
I am not confident that the Tribunal in its current iteration and with some of its members is capable of providing a mechanism or review that is fair, just, economical, informal and quick.