Schedule 3 Criteria – Not holding a Substantive VisaAugust 15, 2017 - Unreported Cases
Proof of Compelling and Compassionate Circumstances is always an essential element in Partner Visa Applications
It is all in the level of the proof provided and quality of submissions addressing the relevant visa criteria.
There are two pathways available for a partner visa, dependent on whether the visa application was applied onshore or offshore. Onshore partner visa applications take the form of a temporary Partner visa (subclass 820), which in turn leads to a permanent partner visa (subclass 801). An offshore partner visa takes the form of a provisional partner visa (subclass 309), which then transitions to a permanent partner visa (subclass 100).
There is also a prospective marriage visa (Subclass 300). The Prospective marriage visa in turn requires an applicant to lodge an onshore partner visa.
Eligibility for a temporary subclass 820 and permanent 801 visa entails the applicant and their sponsor showing the Department of Immigration and Border Protection that they are in a genuine and ongoing relationship, consenting freely to the relationship and to the exclusion of all others. As such, eligibility for this visa process requires that the applicant is the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand Citizen.
Other factors which determine eligibility include certain health and character requirements, including partaking in and signing an Australian Values Statement.
Schedule 3 of the Migration Regulations 1994
When applying for an Onshore Partner Visa, additional criteria is imposed on applicants who are not the holder of a substantive visa, such as where the applicant is unlawful at the time they apply or have been on a Bridging Visa in excess of 28 days. This is known as Schedule 3 criteria.
Therefore, if an applicant doesn’t satisfy Schedule 3 criteria of the Migration Regulations, they must demonstrate that compelling and compassionate circumstances exist for not applying Schedule 3 to their application.
A recent case
Recently, the Family Stream of Lawyers at Immigration Solutions Lawyers assisted a young woman from the Philippines with an extensive immigration history to migrate to Australia. This client had arrived in Australia as the holder of a Subclass 189 visa. This visa was, however, cancelled in 2015.
At this time, she came to Immigration Solutions Lawyers to assist her in applying for a Subclass 820 Partner visa. While this was the best course for the client to take, because the client was not the holder of a substantive visa at the time of the lodgement of her partner visa applicant, it was imperative that the lawyers at Immigration Solutions Lawyers prove in the submission that Schedule 3 should be waived in this case as there were compelling reasons which existed. As such, the submission in relation to Schedule 3 relied on the existence of the client’s child, born in Australia to the Australian partner of the client.
Through hours of hard work and ingenuity, the lawyers at Immigration Solutions Lawyers were able to get this family the outcome that they had been working for in assisting the client to migrate to Australia.
For more information on how Immigration Solutions Lawyers can assist you or your loved ones in migrating to Australia, visit our website or call us on 1300 428 472.
- Administrative Appeals Tribunal
- Business Visas/Skilled Work Visas
- Carer Visa
- Character Cases
- Compelling Circumstances
- Family Violence
- Federal Court Cases
- Illegal Overstayer
- Migration Review Tribunal
- Ministerial Intervention
- Partner Visas - 300 Offshore Prospective Marriage
- Partner Visas - 309 Offshore Spouse
- Partner Visas - 820 Onshore Spouse & De Facto Relationship
- Protection Visa
- Resident Return Visa
- Schedule 3
- Skills Assessment
- Visitor Visas
- Waiver of No Further Stay Condition