How Do We Demonstrate Compelling Reasons for Schedule 3?
Are you an unlawful non-citizen applying for a Partner (Subclass 820) visa? Your application may be affected by a Schedule 3 criterion, particularly 3003 or 3004. Unless you can demonstrate that there are compelling reasons for granting your visa, it will be difficult for your visa to be granted.
What is Schedule 3?
Schedule 3 of the Migration Regulations 1994 (Cth) lists 5 criteria that an applicant may need to meet if they are an unlawful non-citizen. Most importantly, criteria 3003 and 3004 apply to applicants without substantive visas and prevent them from being granted a visa with Schedule 3 requirements unless they can demonstrate that:
They don’t hold a substantive visa because of factors outside their control;
There are compelling reasons for granting their visa, and
They have substantially complied with previous visa conditions
What are the compelling reasons?
The exact circumstances that can give rise to compelling reasons under Schedule 3 are not precisely defined anywhere in the legislation. Although there are other waivers that involve a consideration of compassionate or compelling circumstances, these reasons will not necessarily be the same as those required under Schedule 3.
However, as a matter of policy, the Department of Home Affairs may grant a visa if there are sufficiently compassionate factors that are compelling. The relevant compelling reasons do not necessarily have to be those of the applicants themselves.
Additionally, circumstances beyond your control that have affected your lawful status can also be compelling grounds to grant a visa. Although these are different requirements under the law, a delegate may often consider these together depending on the circumstances. For example, if a serious injury or illness prevented you from lawfully leaving the country, you may be granted a visa as you had no control over that situation.
Ultimately, there are no clear rules or guidelines regarding what specific factors a decision-maker will consider, and whether you can establish compelling reasons will largely depend on your individual circumstances. Hence, we always recommend that you discuss your unique circumstance with an Accredited Specialist in Immigration Law to determine the complexity of Schedule 3 Criteria.
A decision-maker can also take into account the consequences of not granting a visa when assessing whether compelling reasons exist. For example, if you have a child born in Australia who has become a citizen or if you have developed a serious illness that cannot be treated in your home country, then these may give rise to compelling reasons to grant a visa. The explanatory memorandum for the amendment, which adds to the waiver provisions, lists being in a relationship of over two years or having Australian-citizen children as examples of compelling reasons.
When do the compelling reasons need to exist?
In the case of Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, it was held that although the criteria under 3001, 3002 and 3003 needed to be met at the time of application, no such limitation applied to the Minister’s waiver. Consequently, compelling reasons that only arise after an application is made are still taken into account.
How Can Agape Henry Crux Assist
If you are in a complex matter of schedule 3 visa matter. Our team of immigration lawyers and registered migration agents works with 2 of our Accredited Specialists Immigration Lawyers at Agape Henry Crux. The team specialises in handling highly complex matters. Schedule an appointment with one of our solicitors to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin and Cantonese. We can also help you arrange an interpreter if this isn't your language.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
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