Australian Immigration Daily News

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!