Financial and Professional Hardship

November 7, 2021 - Unreported Cases

The Applicant arrived in Australia on a subclass 417 Working Holiday Visa and then applied for a subclass 457 visa Temporary Work (Skilled) which was granted. Shortly after, the Applicant and the Sponsor met for the first time and began a relationship.

The Applicant’s employer lodged a nomination under the ENS but the Applicant was not aware that he also had to lodge a visa application and hence did not lodge one. The Applicant’s 457 visa then expired and his employer was contacted by the DIBP to advise them that the Applicant’s visa had expired and that he was unlawful. The Applicant and Sponsor then decided to lodge an application for a Partner visa.

Immigration Solutions Lawyers (‘ISL’) assisted the Applicant with his Partner visa application. ISL first submitted that the Applicant and Sponsor were in a genuine and committed relationship. The Applicant supported the Sponsor financially; he was the main income earner as the Sponsor was initially on a lower income and at the time was not working. They had been living together for a significant amount of time and they held themselves out to be a de facto couple and were seen as such by their friends and family. They also supported each other emotionally. ISL provided evidence to indicate that they had a mutual commitment to their life together.

ISL also had to provide a Schedule 3 submission; the Applicant lodged his Partner Visa application in excess of 28 days period after the expiry of his last substantive visa. Hence, he could not satisfy Schedule 3 criteria 3001. However, ISL submitted that there were compelling reasons to waive these criteria. The Applicant believed that by his employer lodging the ENS application he had started all that was required for the permanent residency process; he didn’t realise that he had to make a subsequent application. The Applicant was then contacted by the Immigration Department advising that his 457 visa had expired and he was unlawful. The Applicant took immediate steps to rectify the situation by going to Compliance where he was granted a Bridging Visa. At this time the Applicant and Sponsor were already in a de facto relationship and decided that they should lodge a Partner visa application. The Applicant only became unlawful due to a misunderstanding, he had previously always complied with his visa conditions and immediately sought to rectify the situation.

ISL submitted that there were two compelling reasons to waive the Schedule 3 criteria. First, if the Applicant were to leave the country this would cause significant financial hardship to the Sponsor. The Sponsor was financially dependent on the Applicant and was also studying full-time. If the Applicant were forced to leave, the Sponsor would not be able to cope with the pressures of having to financially support herself and study simultaneously. Second, if the Applicant were forced to leave he would suffer significant professional hardship. The Applicant had worked hard to forge a career in Australia; it is difficult to obtain employment in his industry without experience in the Australian market. The industry in which he worked was not growing to the same extent in his home country as it was in Australia, and he would have struggled to further his career if forced to return.

ISL was successful in securing the grant of a Partner (Temporary) (class UK) Partner (subclass 820) visa for the Applicant.