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Another Decision Highlights Difficulties of Getting Schedule 3 Waiver!

Suppose the sponsor for a partner visa is suffering from a litany of health issues.

Does that necessarily mean that the applicant will be able to get a waiver of Schedule 3 criteria to enable her/him to remain in Australia while a partner visa application is being processed?

A recent decision by Judge Baird of the Federal Circuit Court in the case of Mensah v Minister for Home Affairs & Anor (2018) FCCA 1204 (10 May 2018) indicated that “it ain’t necessarily so”!

As lawyers and judges love to say, “it all depends” on the particular facts and circumstances of the case.

The story in the Mensah case was that the applicant is a citizen of Ghana.  His last substantive visa had expired in October 2015, and he did not apply for the partner visa until August 2016. Although the Tribunal had expressed some reservations in its decision concerning the applicant’s motivations for applying for the visa – noting that the applicant had breached the short stay visa on which he had originally arrived in Australia, that he had quickly developed a bond with the sponsor, and that he had 4 children in Ghana – it accepted “at face value” the applicant’s claims that his relationship with the sponsor was genuine.

The sole issue before the Tribunal was therefore whether there were “compelling reasons” for the Tribunal not to apply the criteria of Schedule 3.

It was the applicant’s case that his sponsoring wife was suffering from a number of medical conditions, including depression, high blood pressure, hypertension, carpal tunnel syndrome, back pain, and others.

The applicant also sought to rely on affidavits concerning the health circumstances of the applicant’s sponsor that were made after the Tribunal’s decision.

The difficulty for the applicant in this case was that the Tribunal had found that the applicant’s claim that his continued presence in Australia was essential for the sponsor’s well-being was undermined by the sponsor’s own evidence that he had been spending about half of each week away from the sponsor in order to work away from Sydney, where he and the sponsor lived. 

Also harmful to the applicant’s case was evidence before the Tribunal that the sponsor had been under a doctor’s care for management of her depression for many years before she had met the sponsor, and there was no indication that she would not be able to manage her depression with the assistance of the doctor, even in the temporary absence of the applicant.

As for the affidavit evidence that was prepared after the Tribunal decision, and was initially filed with the Federal Circuit Court: the Court (properly, in my view) concluded that this material was directed solely at the merits of the Tribunal’s decision, and also dealt with matters arising after the Tribunal’s decision, and was thus irrelevant to the question of whether the Tribunal had committed jurisdictional error.

The moral of this case is that applicants who are seeking waivers of Schedule 3 must be mindful that it is essential to be able to have proof that the continued presence of the applicant in Australia is important to the well-being of the sponsor. 

Here, the evidence of the relationship – that the applicant and sponsor were already separated from each other about half the time, due to the applicant’s work commitments away from home – apparently badly undercut the case for the grant of a Schedule 3  waiver.

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