System Message:

Australian Immigration Daily News

Breaking Australian immigration news brought to you by Migration Alliance and associated bloggers. Please email

  • Home
    Home This is where you can find all the blog posts throughout the site.
  • Categories
    Categories Displays a list of categories from this blog.
  • Tags
    Tags Displays a list of tags that have been used in the blog.
  • Bloggers
    Bloggers Search for your favorite blogger from this site.
  • Team Blogs
    Team Blogs Find your favorite team blogs here.
  • Login
    Login Login form
Posted by on in General
  • Font size: Larger Smaller
  • Hits: 1089

Can Plans to Have a Baby Support Schedule 3 Waiver?

Here’s another interesting question that was recently decided by the Federal Circuit Court on Schedule 3 waivers:

Is a future desire on the part of the applicant and sponsor to have a child together a “relevant consideration” that must be taken into account by the Administrative Appeals Tribunal when it determines whether or not to grant a Schedule 3 waiver?

The case in which this question was presented was Lan v Minister for Immigration & Anor 2018) FCCA 1170 (2 May 2018). 

At the hearing before the Federal Circuit Court, the barrister who was representing the applicant before the Federal Circuit Court argued that a future intention to have children stated prior to the time of a decision concerning the grant of a Schedule 3 waiver” was both a relevant consideration and a compelling reason for the grant of a waiver.

This argument was predicated in part on the Full Court’s decision in Waensila, where it was held that any matter arising prior to the time of decision on a waiver request must be taken into account.  (As readers will be aware, prior to Waensila, the prevailing principle was that only matters that were in existence at the time of the lodgment of the application could be taken into account.

In Lan, Judge Egan of the Federal Circuit Court held that the future intentions of the applicant and the sponsor are not matters that the Tribunal is obligated to consider.

Rather, it was Judge Egan’s view that under Waensila, the matters that must be considered are limited to “those facts which (are) existing and established facts as at the time of the making of the decision”.

Therefore, this decision confirms that the “compelling reasons” that are relied upon in support of a waiver request must “actually exist” at the time of the decision.  In Judge Egan’s words, the Waensila decision does not go so far as to hold that:

“facts or matters the subject of future possible scenarios, whether reasonably based or matters or mere conjecture, ought to be relevant considerations to be taken into account when the Minister determine(s) whether compelling reasons exist...or not”.

So, the message here is that applicants cannot rely on the possibility that something might happen in the future, or the desire that that thing happen, as the basis for a request of a waiver of Schedule 3.

The waiver application must be predicated on the “cold, hard facts” of matters that are already in existence at the time of the decision.

The law is malleable but can only be stretched so far!

Last modified on
Rate this blog entry:


  • No comments made yet. Be the first to submit a comment

Leave your comment

Guest Saturday, 19 January 2019
Joomla SEF URLs by Artio

Immigration blog

Westpac Banner
Do you need me in your corner?
A new year is upon us all. The various participan...
Continue Reading...
The Australian Business and Innovation and Investment programme
The Australian Business and Innovation and Investm...
Continue Reading...
Lewis & Bollard Migration Newsletter 710
Lewis & Bollard have released their Migration ...
Continue Reading...
AAT Bulletin 14 January 2019 - Citizenship and Migration Decisions
The AAT Bulletin dated the 14 January 2019 shows r...
Continue Reading...