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What happens if you make an application being unlawful or as a holder of Bridging Visa? Your application will be affected by Schedule 3 criteria.

It is not uncommon for Australians to enter into relationships with citizens of other countries temporarily working or studying here. In some occasions, these develop into long-standing relationships with the desire to build a family and future together. Some of these couples will have to discuss the logistics of migrating for their partners, with many of them deciding to continue to live in Australia. In these situations, these couples may be advised to apply for a Partner Visa.

Now, imagine a situation where the Visa Applicant overstayed their last substantive visa and has been unlawful for a period of time. Or holds a bridging visa, however, has their visa refused in the past and is waiting for an outcome from Administrative Appeals Tribunal.

In these circumstances, making an onshore application for a Partner Visa will be particularly difficult because of the additional criteria that must be met under Schedule 3 of the Migration Regulations 1994. The Schedule 3 criteria may be waived if the Visa Applicant can show that:

(a) they are not a holder of a substantive visa because of factors beyond their control;

(b) there are compelling and compassionate reasons for granting the visa; and

(c) they have complied substantially with the conditions that apply or applied to previous entry permits or substantive visas.

We were contacted by a couple facing this exact situation not too long ago. The Visa Applicant had been unlawful for approximately four years prior to the application, which was swiftly refused by the Department. At the appeal, we sought the waiver based on the following circumstances:

  • At the time of the appeal, the Visa Applicant and Sponsor had been in a long-standing relationship to the exclusion of all others for three years, two of which as a married couple.
  • The Sponsor had been facing several ongoing mental and physical health issues and relied heavily on the Visa Applicant for her day-to-day needs.
  • The Visa Applicant also took care of the Sponsor’s ill mother who lived with them.
  • To everyone that knew them, the Applicant and Sponsor were a loving and supportive pair.

As the Visa Applicant was unlawful and did not hold a work visa, he was unable to provide for the family financially. However, the mental, physical, and emotional support that he provided to the Sponsor and her mother proved to be strongly compassionate and in the interest of the Australian citizens.

The Sponsor’s reliance on the Visa Applicant, on top of her inability to travel overseas due to her health, was heavily persuasive in proving that an offshore application would be detrimental to the Sponsor’s well-being. Their separation would mean that the Sponsor would be incredibly disadvantaged as she relied on the Visa Applicant in her everyday life. These factors were considered by a member of the Tribunal and decided in their favour.

We understand that every relationship is different, however, if you are in a genuine long-standing relationship (for more than two years) where there are compelling and compassionate circumstances in relation to an Australian citizen/permanent resident, please do not hesitate to contact us. We are experienced in understanding and highlighting your difficult situations to tip the scale in your favour.