Keeping a Family Together: Waiving Schedule 3 to Secure an Onshore Partner Visa.

The challenge

Our client was a woman who applied onshore for a Partner visa (subclasses 820 and 801), sponsored by her long-term de facto partner, an Australian citizen. An onshore Partner visa allows the partner of an Australian citizen, permanent resident or eligible New Zealand citizen to remain in Australia and, in time, to obtain permanent residence.

The difficulty was that, by the time she applied, our client no longer held a substantive visa. When an onshore Partner visa applicant is in that position, the law imposes a set of additional hurdles known as the Schedule 3 criteria. One of those criteria requires the application to be made within 28 days of the day the applicant last held a substantive visa. Our client could not meet that requirement, and conceded as much. Unless the criteria could be waived, the visa could not be granted.

The only path forward was the waiver in subclause 820.211(2)(d) of the Regulations, which allows the Schedule 3 criteria to be set aside where there are “compelling reasons” for not applying them. That is a deliberately high bar. A genuine and continuing relationship, on its own, is never enough. The reasons must go further, and must be powerful enough to drive the decision maker to set the criteria aside.

How our client came to lose her substantive visa lay at the heart of the case. After completing an Australian degree, she set out to apply for a Temporary Graduate visa. To qualify she needed to sit an English language test by a fixed deadline. The COVID-19 pandemic then closed the testing centres, her bookings were cancelled, and the next available sitting fell just days after the deadline. She passed the test at the first opportunity, but by then she had missed the deadline, and the graduate visa was refused. A long review and ministerial process followed. Throughout those years she did everything she could to remain lawful, holding bridging visas and, across the whole period, being unlawful for only a few days.

Our approach

We sought the grant of the Partner visa on the basis that there were compelling reasons to waive the Schedule 3 criteria, and built the submission on three pillars.

First, the law. We set out that “compelling” carries its ordinary meaning of forceful or convincing reasons, that they must go beyond the mere existence of a genuine relationship, and, importantly, that the Full Court of the Federal Court, in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, has confirmed that compelling circumstances may be assessed as at the time of decision, including matters that arise after the application is lodged. That principle was central, because our client’s circumstances had continued to develop after she applied.

Second, loss of status through factors beyond her control. We showed that our client lost her substantive visa because the pandemic closed the English testing centres, causing her to miss the graduate visa deadline by days. The Tribunal that had earlier reviewed that refusal made express findings to this effect, describing it as unfair and unjust to punish her for events clearly beyond her control. We demonstrated that she had gained no unfair advantage and had not manipulated her circumstances, having been lawful but for a few days across many years and having tried repeatedly to regularise her status.

Third, the unreasonableness of applying offshore and the consequences of separation. We established that requiring her to leave and apply from overseas, with offshore processing then running up to around two years, was not reasonable. Our client was pregnant with the couple’s first child, in the high-risk early stage of a first pregnancy, and needed both her established Australian medical care and her partner’s day-to-day support. The child, once born, would be an Australian citizen. The impact on the sponsor was equally weighty. He was a Australian citizen with deep roots in his community and a long-established small business which would have to close if he left, with flow-on losses for those who depended on it. The couple had been together for years and had never been apart for more than a week. We argued that forced separation would cause serious hardship and supported our submission with medical and psychological evidence.

The outcome

The Department accepted that there were compelling reasons to waive the Schedule 3 criteria. The Partner visa was granted at the Departmental stage, without the need for any further review or appeal. Our client was able to remain in Australia with her partner, continue her pregnancy under her established medical care, and welcome their child here as a family.

Why it matters

Schedule 3 is one of the most difficult hurdles in partner migration. Where an applicant has lost their substantive visa, the existence of a genuine relationship will never, by itself, be enough. A grant depends on persuading the decision maker that there are compelling reasons to waive the criteria. Because compelling circumstances are assessed as at the time of decision, events arising after lodgement can be decisive. A thorough, evidence-based waiver submission can secure the visa at the Departmental stage and spare a couple years of uncertainty.

Details in this case study have been anonymised to protect our clients’ privacy.