visa

A recent decision of the Migration Review Tribunal provides a powerful example of why it is so vital that non-citizens who wish to remain in Australia keep their visa status current at all times.

The case, 1410214 (2015) MRTA 181, involved an appeal against the Department’s refusal of a Partner Visa application (subclass 820).  The visa applicant had originally come to Australia from India in June 2007 on a student visa, which ceased in January 2008. The applicant then obtained a further student visa which ceased in June 2009. Although he was located by the Department in November 2011 and was given a bridging visa and an opportunity to apply for a further substantive visa by December 2011, he did not submit a further application until nearly two years later, in September 2013. At that time, while still on-shore in Australia, he sought a Partner Visa which was sponsored by his wife, who he had married in December 2011. The marriage took place prior to the deadline given to the applicant by the Department for lodging a further substantive visa.

The obstacle that the applicant faced to his application was that he had failed to comply with the criteria of Schedule 3 of the Migration Regulations 1994. Furthermore, the applicant was not able to persuade the Department or the MRT that there were “compelling reasons” for not applying these criteria to his case.  The applicant’s failure to meet the Schedule 3 criteria, or to show that he was entitled to a waiver of the criteria, ultimately proved fatal to his on-shore Partner Visa application.

Schedule 3 of the Migration Regulations impose additional criteria that must be met by “unlawful non-citizens” – in other words, persons who are on-shore in Australia but are not the holders of a valid Australian visa.  In essence, criteria  3001 and 3004 of thisSchedule specify that a person who ceased to hold a valid “substantive” visa after 1 September 1994 must apply for a new visa within 28 days of the date when she or he last held a visa.

In turn, the provisions of the Migration Regulations specify that an applicant for a Partner Visa who does not have a substantive visa must either meet the Schedule 3 criteria (that is, must have applied for a new substantive visa within 28 days of expiry of the previous valid visa) or must demonstrate that there are “compelling reasons” for not applying Schedule 3. This requirement appears at subclause 8201.211(2)(d) of theRegulations.

As it was incontestable in this case that the applicant had not submitted a new visa application within 28 days of the expiry of his last student visa, his case hinged on his ability to show that there were “compelling reasons” why the Schedule 3  requirement to lodge the new visa application within this time period should not be applied.

The Tribunal member who presided over the case (Member Amanda Goodier) concluded that the Schedule 3 criteria are criteria that must be met at the time of the application.  She further observed that it would be erroneous for the Tribunal to consider reasons that arose after the application was lodged.

The evidence before the Tribunal was that the applicant did not take any action to regularize his visa status after being located by the Department in December 2011 because he feared that he would have to return to India, that his wife would not be able to accompany him as she would not be accepted by his family, and that they would have nowhere to live and be unable to find work.

By the time of the hearing before the MRT, the applicant’s wife had become pregnant. The applicant made submissions to the Tribunal that there were “compelling reasons” why the Schedule 3 requirements should not be applied in his case – namely that his wife needed his support during the pregnancy and that it would cause stress and emotional anxiety for them to be apart.

Unfortunately for the applicant, the Tribunal found that although the stress and anxiety that the applicant and his wife were likely to suffer as a result of being separated during her pregnancy might be considered a “compassionate circumstance”, it did not amount to a compelling reason that was in existence at the time of the application that would warrant granting a waiver of Schedule 3.

Consequently, the Tribunal affirmed the Department’s decision to refuse the grant of the “on-shore” Partner Visa.  Thus, the only solution available to the applicant was to go off-shore and re-apply for a Partner Visa.   The cost of submitting a new application will be $4,630 under the Department’s current visa pricing table.  Furthermore, the time for the Department to process the new visa application is likely to be lengthy, possibly greater than 12 months. The applicant and his wife will be separated during this time unless there is some avenue for her to join him overseas.

One can only feel tremendous sympathy for the applicant and his wife for the circumstances they find themselves in due to the failure of the Partner Visa application.

However, this very unfortunate situation could have been avoided by the applicant had he taken one of two steps: 1) lodged a new substantive visa application within 28 days of the expiry of his second student visa application, and thereafter vigilantly assured that he maintained a valid substantive visa  for the entire period he remained in Australia; or 2) act upon the Department’s invitation to submit a substantive visa application which was extended to him after the Department located him in 2011.

It is somewhat difficult to comprehend why the applicant did not take advantage of the opportunity that was given to him by the Department, especially since his relationship with his wife began long before this invitation was extended, and indeed his marriage took place before the deadline that was given by the Department for lodging a new application expired.

The moral of this case is that all non-citizens must exercise vigilance to ensure that they continue to hold valid visas while they are in Australia.  Further, if a person finds themselves in the lucky situation of having been extended an additional opportunity by the Department to lodge a new substantive visa application even after they have failed to seek the new visa within 28 days of the expiry of their previous visa, they must act upon that invitation with extreme urgency.