Australian Immigration Daily News

What evidence is needed to win a “Schedule 3” case?

Exactly what kinds of circumstances might be considered to provide “compelling” reasons for the Schedule 3 criteria not to be applied, so that an applicant for a Partner visa who does not hold a substantive visa may remain on shore in Australia during the all-too-lengthy period when the application is being assessed?

Unfortunately, there is no definition in the Migration Act or Migration Regulations of the meaning of “compelling”, no objective standard, and no “magic formula” or “recipe of facts” that will drive a conclusion that the circumstances in any case are so persuasive that the power to waive Schedule 3 must be exercised.

It appears that the best guidance that is available concerning what the term “compelling” means comes from the often-cited case of Babicci v Minister for Immigration and Multicultural and Indigenous Affairs, (2004) FCA1645, where it was held that it “compelling” circumstances can be found to exist where the evidence before the Tribunal reveals “circumstances such that the Tribunal would be overwhelmingly inclined to exercise the discretion in favour of the applicant”.

Clearly, there is a lot of room for subjective judgment about what is, and what is not, compelling, isn’t there?

Well, a recent decision from the Federal Circuit Court, Singh v Minister for Immigration & Anor (2017) FCCA 2315 may offer some clues or guidance about what kinds of facts may not be enough to get a Schedule 3 case “over the line”.

This was the story: The applicant was a citizen of India, who originally arrived in Australia in 2008 as the holder of a student visa. That student visa was cancelled in 2010, but, nonetheless, the applicant remained in Australia as an unlawful non-citizen.  He then applied for a Protection visa, and when that application was refused, he exhausted every possible means to challenge the refusal: a merits review application to the former Refugee Review Tribunal, subsequent judicial review applications to the Federal Circuit Court, the Federal Court and the High Court, and then an unsuccessful request for ministerial intervention.

The applicant married his partner, who was a permanent resident, shortly after the request for ministerial intervention was rejected, and, shortly after the marriage, lodged the partner visa application which gave rise to the issue of whether a “waiver” of Schedule 3 should be granted.

These were the matters that were put to the Tribunal as supposedly compelling circumstances in the Singh case:

• That the applicant and the sponsor were in a genuine and continuing spousal relationship;
• That the applicant “looked after” the welfare and day-to-day needs of the sponsor’s three children;
• That the sponsor derived “much of her moral and emotional support” from the applicant,  and that she had been in a “hopeless stage” before meeting the applicant; and
• That the applicant and her children “would be put to severe financial hardship” if the visa were not to be granted.

The Tribunal’s conclusions as to these matters were as follows:

• The existence of a spousal relationship does not, in and of itself, give rise to compelling reasons not to apply Schedule 3 criteria;
• The “emotional bond” between the applicant and the sponsor’s children was not enough (there was apparently no consideration by the Tribunal as to whether granting a waiver of the Schedule 3 criteria would be in the “best interests” of the sponsor’s children;
• “Emotional upset” or “financial problems” arising from the applicant’s having to go offshore pending the processing of the application did not amount to compelling reasons.

The Federal Circuit Court (Judge Manousaridis) determined that the Tribunals conclusions that there were not compelling reasons were “reasonably open to it”, and consequently, that there had not been any jurisdictional error on the part of the Tribunal in affirming the refusal of the Partner visa application.

So what’s the “takeaway” from the Singh case?

Evidently, to succeed in getting a Schedule 3 waiver, the “compelling circumstances” will need to be more “compelling” - stronger, more forceful and persuasive – than they were here!

And again, the question remains with partner visa applications: should applicants who for whatever reason no longer hold substantive visas at the time of the application be forced to go offshore, and be separated from their partners and families pending the processing of their applications if they cannot demonstrate compelling reasons for Schedule 3 not to be applied? 

Is there really a sound policy reason for this feature of the Regulations?

Or is it simply unfairly harsh and punitive to persons who have allowed their prior substantive visas to expire?

What do you think?

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