Australian Immigration Daily News

Is it hard to persuade the Department and the Tribunal that the Schedule 3 criteria should be “waived” so that an applicant can apply for a Subclass 820 Partner visa while onshore in Australia, and obtain a Bridging Visa A to remain in Australia with her/his spouse or partner while the application is being processed?

And is it hard to persuade the Federal Courts that the Tribunal has fallen into jurisdictional error when it has determined that “compelling reasons” do not exist for not applying the Schedule 3  criteria?

The answers to these questions are “yes!” and “YES!!!”.

And the difficulty of overcoming a decision not to “waive” Schedule 3 is illustrated by a recent decision of the Federal Court, in the case of Choi v Minister for Immigration and Border Protection (2018) FCA 291 (16 March 2018).

This case involved an application by a citizen of Korea who had originally arrived in Australia in August 2003, and who had held a variety of visas until her most recent visa had expired in 2011. She did not apply for a Partner visa until 2014, and was thus in a position where she either had to satisfy the Schedule 3  criteria (which she couldn’t), get them waived, or apply for the Partner visa from offshore and endure a period of separation from her sponsoring partner until the application was processed and determined by the Department.

The grounds put forward by the applicant in support of her request that the Schedule 3 criteria be waived were that:

• There was a long-standing relationship between herself and her sponsor;
• The sponsor had suffered from depression and insomnia before his relationship with the applicant had started, and these symptoms had improved since the relationship began;
• The sponsor suffered from a variety of physical ailments and was assisted and cared for by the applicant;
• The parties pooled their resources and shared their finances;
• The applicant and sponsor were reliant on each other for comfort and emotional support; and
• The parties would be separated if the waiver were not granted.

Neither the Department at first instance nor the Tribunal on review was satisfied that compelling reasons” for waiving the Schedule 3 criteria were present in this case.

The Tribunal took the view that the existence of a genuine relationship and close emotional support was simply a “normal indicia” of a marriage; that the sponsor’s mental and physical conditions were not of a level of severity to rise to the level of “compelling reasons”;  and that the separation  while the application was being processed would not subject the parties to financial hardship and would only be temporary in nature.

It was argued that the Tribunal had committed jurisdictional error because it did not separately “consider the death (of the applicant’s) previous spouse and her lonely and tough life prior to her relationship with the sponsor”.

On appeal to the Federal Court, Chief Justice Alsop concluded that the Tribunal had not fallen into error.

Justice Alsop held that the Tribunal need not address each and every one of the parties’ claimed circumstances.

It was enough that in this case that the Tribunal had made findings that the parties provided each other with mutual comfort and support, and therefore, the Tribunal did not need to “separately address” the applicant’s personal history, including that she had had a difficult life prior to entering the relationship with her sponsor, or that she had suffered loneliness after the death of her previous spouse.

Justice Alsop did make some observations in his written reasons in this case that provide some useful guidance for those attempting to obtain a “Schedule 3” waiver for their clients in future cases.

In these observations, Justice Alsop noted that statements in PAM suggesting that “compelling reasons” must involve circumstances that are involuntary or beyond a person’s control – such as a physical incapacity to depart from Australia, for example – is simply inconsistent with the Explanatory Memorandum that accompanied the introduction of the Schedule 3  waiver provisions.

Instead, Justice Alsop stated that the focus, when a request for a waiver of Schedule 3 is sought, should be on the hardship that would be suffered by the sponsor, applicant or third parties, and on whether the applicant’s connection to Australia is sufficiently “strong” to give rise to compelling reasons for the waiver to be granted.

What appears clear from this case is that more is required for a Schedule 3 “waiver” than just the normal evidence that a genuine relationship exists between the parties.

Unfortunately, that type of evidence did not seem to be present in this case.