Compelling and/or compassionate circumstances for Onshore Partner Visas (AAT FOI Document)

When applying for a Partner visa onshore, it is generally recommended that the applicant is the holder of a current substantive visa. However, according to the Migration Regulations 1994 (Cth), where an applicant is not a holder of a substantive visa (meaning the applicant is an unlawful non-citizen or holder of a bridging visa) at the time of lodgement, they may still be eligible to be granted the Partner visa if they satisfy the Schedule 3 criteria.  If satisfied, the Schedule enforces a time limit for the applicant to make their Partner visa application.

Nonetheless, the criteria set out in Schedule 3 can be difficult for many potential applicants to satisfy. However, under Schedule 3, the Minister has the power to waive these criteria where the Minister is satisfied that there are compelling reasons to do so.

On 17 February 2023, under Australia’s Freedom of Information scheme, Australia’s administrative appeals tribunal published guidance on the interpretation and application of compelling circumstances in relation to onshore Partner visa applications.

This blog post will provide a summary of the information provided by the Tribunal on when Schedule 3 requirements can be waived. However, if applicants need specific information, tailored advice or assistance in relation to a Schedule 3 situation, they should contact an Australian Migration Lawyer today who can provide relevant information and representation on an applicant’s behalf.

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Schedule 3 Requirements

Under Schedule 3, unless waived by the Minister, potential onshore Partner visa applicants will either need to:

• Be the holder of a Diplomatic (subclass 955) visa or as a Special Purpose visa holder was a SOFA member or their dependent and satisfy criterion 3002 
• Satisfy criteria 3001, 3003 and 3004

Criteria 3001: 

• Make the application within 28 days after unlawful entry or overstay

Criteria 3002: 

• Make the application within 12 months after unlawful entry or overstay

Criteria 3003: 

• The applicant became an illegal entrant due to factors outside the applicants control and there are compelling reasons to grant the visa and the applicant complied with the conditions of their previous visa and the applicant would have been entitled to another visa and the applicant intends to comply with any conditions of a new visa and the applicant’s last visa was not subject to a no-further stay condition

Criteria 3004: 

• The applicant entered Australia unlawfully and has not subsequently been granted a substantive visa and the applicant is not the holder of a substantive visa because of factors beyond the applicants control and there are compelling reasons for granting the visa and the applicant has complied substantially with the previous visa’s conditions and the visa applicant would have been entitled to a subsequent visa and the applicant intends to comply with any conditions of a new visa and if the applicant’s last visa was not subject to a no-further stay condition

These requirements are arduous for any applicant to satisfy, and as a result, applicants will often seek to show that they have compelling circumstances not to be required to meet these criteria. 

General principles for ‘compelling and/or compassionate circumstances’

Within the Migration Act or the Migration Regulations, despite being terms critical to the waving of specific requirements, ‘compelling’ and ‘compassionate’ are not specifically defined. As a result, it is a contextual case-by-case consideration made by the Minister and/or the Tribunal, informed by the context the phrase is used in and the purpose of the provision the phrases is located. When considering the applicant’s situation, all of their circumstances must be accounted for

The use of ‘compelling’ instructs the relevant decision-maker to be demanded or forced to a particular conclusion out of moral necessity. The use of the word ‘compassionate’ instructs the relevant decision-maker to feel sympathetic or pity for an applicant’s situation.  While the terms are often used together for cumulative effect, they do not have to be used together and where this is the case the other word should not be considered. Therefore, when compelling is referred to, the circumstances must be such that the decision-maker is heavily persuaded to come to a particular view.

As a result, it appears that the relevant decision-maker is required to meet a high threshold to waive a Schedule 3 requirement in any given circumstance.

Waiver in the context of an on-shore Partner visa

As stated earlier, the burdensome Schedule 3 criteria can be waived where the Minister is satisfied there are compelling reasons to do so. 

The purpose of this waiver was to recognise that there can be potential hardships suffered by an applicant that would result in circumstances where an applicant should remain onshore when applying for a Partner visa, rather than being forced to leave. The Department guides decision-makers to consider why the applicant became unlawful in Australia and what the circumstances out of their control are.  Therefore, decision-makers should endeavour to consider all of the relevant circumstances of the applicant, including information available at the time of lodgement up to the time the decision was made. As long as the reasons exist prior to a decision being made, they are deemed to be relevant considerations for the purposes of determining whether there are compelling reasons to waive the various criteria.

While it is recognised that there are instances where compelling circumstances will not be found due to the inherent characteristics of the relationship (such as how long the relationship has been for or if it is genuine), the applicant’s circumstances should still be assessed on a case-by-case basis. Furthermore, a decision-maker when assessing if there are compelling circumstances should engage with the situation themselves and give all arguments and evidence genuine consideration. 

Decision-makers are not required to consider international obligations or treaties when considering compelling reasons for the purposes of a Schedule 3 wavier.

Ultimately, decision-makers should not be ignoring substantiated reasons presented to them, and keep in mind that the purpose of the waiver is to avoid putting particular applicants to the hardship of having to leave Australia to apply for their partner visa.

Working with an Australian Migration Lawyer

As alluded to under the Migration Regulations and discussed by the Tribunal, it is possible for those who do not have a substantive visa to have the Schedule 3 requirements waived if applying onshore for a Partner visa. While the above information is helpful to any applicant who may be subject to the operation of Schedule 3 when making their application, an Australian Migration Lawyer has knowledge and experience of helping applicants navigate this complex legal scenario. For applicants to ensure they give themselves the best chance of success in applying to have the Schedule 3 requirements waived, they should contact an Australian Migration Lawyer who will be committed to making a strong case on their behalf.

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