Australian Immigration Daily News

Can the anxiety that may be suffered by the sponsor of an applicant for a partner visa be a “compelling reason” to waive Schedule 3 criteria so that an application made onshore in Australia can be granted? 

This is a question that commonly arises in partner visa cases, and it was the subject of a recent decision by Judge Emmett of the Federal Circuit Court, Elhendy v Minister for Immigration & Anor (2018) FCCA 1140 (22 May 2018). 

The circumstances of the case were that the applicant is a citizen of Egypt. He originally entered Australia on a short-stay business visa (subclass 456). When that visa ceased, he remained in Australia for a period of time as an unlawful non-citizen, until he applied for a Protection visa.

The application for that visa was refused, and when the bridging visa associated with the application ceased, he again became an unlawful non-citizen. He then married an Australian citizen and lodged the application for a Partner visa. 

However, because the applicant admittedly did not hold a substantive visa at the time that the Partner visa application was made, and did not satisfy Schedule 3 criteria (since the Partner visa application was not made within 28 days of the date he last held a substantive visa, he needed to obtain a “waiver” of the Schedule 3 criteria in order for his application to succeed. 

In this case, the Tribunal dealt with claims that the enforced separation that would result if the applicant were required to pursue his partner visa application from offshore was dealt with by the Tribunal in what may be described as a “stock phrase”, that is very frequently repeated by the Tribunal: 

The Tribunal simply stated that: 

“The Tribunal understands that the parties’ separation may cause the sponsor anxiety. These circumstances are experienced by many partners where it is necessary that an applicant make an offshore application”. 

Was there anything wrong with this approach? 

Judge Emmett found that there was. 

In this case, there was evidence before the Tribunal in the form of a report from a psychologist that stated that the sponsor was suffering from a clinically diagnosed anxiety disorder.  

The report said that the threat that the sponsor’s husband could be forced to return to Egypt to lodge a Partner visa application from offshore “aggravates her pre-existing worries and levels of anxiety, which could certainly lead to an episode of excessive anxiety”. 

In Judge Emmett’s view, the Tribunal had failed to recognise that the applicant’s “anxiety” went beyond the anxious feelings that people in sound mental health would experience if forced to endure a period of separation, and failed to recognise that the applicant had been clinically diagnosed with an anxiety condition that was affecting her mental health. 

In other words, what the Tribunal had done, incorrectly in Judge Emmett’s view, was that it had conflated, or failed to take into account, the difference a “between clinically diagnosed mental health problem and common human emotions”. In so doing, the Tribunal had failed to appreciate the significance of the evidence that had been provided to it concerning the sponsor’s mental health, and by this error had fallen into jurisdictional error.

So, can the anxiety that a sponsor might suffer as the result of being separated from an applicant constitute a “compelling reason” for getting a waiver of Schedule 3? 

According to the reasoning of Judge Emmett in Elhendy, it certainly can.

 However, what is necessary is that the applicant show that the “anxiety” is something that could worsen a clinically diagnosed, existing mental health condition that is suffered by the sponsor. 

So, if you have a case where the sponsor does have mental health issues, and is dependent on the continued companionship and support of the applicant in coping with the mental condition, it would be a sound approach not simply to have the applicant to give lay evidence that she/he will suffer anxiety if separated from the applicant. 

Rather, it would be essential and invaluable to obtain and present to the Tribunal evidence from a qualified psychologist or psychiatrist that the anxiety attendant upon a separation would have the potential to make those mental health problems affecting the sponsor worse. 

In other words, as in this case, the “anxiety” needs to go beyond being a “simple” human emotion and should amount to a condition that has been clinically determined by a qualified mental health professional. 

Keep the lesson from this case in mind!