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It is not difficult to imagine that there are many cases where a person has remained in Australia as an unlawful non-citizen after the expiration of a previous substantive visa (for example, a student visa), has developed a relationship (and perhaps started a family) and then wants to get a partner visa to be able to stay lawfully in Australia.  Of course, people who are in relationships will wish to avoid the period of separation that is associated with waiting for an “offshore” partner visa application to be assessed and determined – especially when the “processing times” for such applications can be very long (commonly exceeding a year). (I would suggest that all RMAs and their clients would agree that these processing times are unjustifiable, and that there is no reason on earth why an offshore partner visa application should take so long to be determined, but that is a matter for another day!).

Given the desirability of applying for the partner visa while onshore rather than from offshore, it is natural to consider – and it can be anticipated that clients will ask: “Realistically, what are the prospects of successfully getting over the “hurdle” of Schedule 3? What kinds of “compelling reasons” could persuade the Department or the Administrative Appeals Tribunal to “waive” the Schedule 3 criteria?

In a case that as examined last week, 1409924 (Migration) (2015) AATA 3088 (15 July 2015), we saw an example of a situation where the AAT determined not to grant a waiver from Schedule 3. In that case, the applicant and his sponsor had a child together who had a health condition that required special care. But because the child was born after the time that the application was lodged, and the AAT determined that the Schedule 3criteria must be met at the time of the application (and thus not at the time of merits review before the AAT), it did not see fit to allow a waiver.

A recent case, that was decided in mid-July (as a matter of fact the very next day after the decision in 1409924 was handed down), and in whichSchedule 3 was waived by the AAT, 1415513 (Migration) (2015) AATA 3045 (16 July 2015) provides an opportunity to “compare and contrast” and thus provides some valuable guidance to circumstances where Schedule 3 could be overcome.

The situation in 1415513 was somewhat similar to that in 1409924,  in that the applicant’s partner/sponsor was 8 ½ months pregnant at the time that the application for review came before the AAT for hearing. However, as in1409924, the Tribunal member declined to take the circumstance of the pregnancy into account as a justification for not applying the Schedule 3criteria because the pregnancy had started after the date that the application was lodged.

So what facts in 1415513 did convince the Tribunal member that there were “compelling reasons” not to apply Schedule 3? Essentially, the Tribunal member found that evidence that the applicant’s sponsor/partner would have suffered “financial and emotional hardship” at the time of the applicationif the applicant had been forced to return to his home country (India) to lodge an offshore partner application was what got the application “over the line”.

This evidence included that the applicant was the “main breadwinner” in the relationship. Although the sponsor had completed a certificate and a diploma in “children’s services” and worked on an “on-call basis” at several child care centres at the time that the application was lodged, she did not have “employment security”.  Interestingly, the AAT was willing to take into account circumstances that arose after the application was lodged to make an assessment as to whether the sponsor was financially dependent on the applicant and that she did not have “employment security” (the Tribunal member relied on the judgment of the Federal Court of Australia in the case of Bretag v MILEGA (1991) FCA 582 as authority for the proposition that it could look to the subsequent history of a matter so long as it would tend to show the existence of a fact to be determined).  Therefore, in this case the AAT had regard to the fact that the sponsor had been made redundant after the time of the application as evidence that she was financially dependent on the applicant and did not have employment security at the time of the application.

(One might observe at this juncture that there appears to be a very fine line between taking matters into account that came into existence after the time of the application (considered impermissible) and taking matters into account that arise after an application to prove a state of affairs at the time of the application!)

The other evidence that the AAT took into account included the fact that the applicant and his partner/sponsor had joint financial commitments, including an obligation to pay rent, a personal loan, credit card, utility and general living expenses, and that the sponsor had stated that she would not be able to maintain these commitments on her own and would have to leave their shared rental property and would not be able to pay the personal loan. Additionally, the AAT assigned importance to evidence given by sponsor that she was reliant on the applicant for emotional support, and that she was concerned that she could not cope socially in the applicant’s absence.

This case shows that a sponsor’s financial and emotional dependence on their applicant/partner may be considered to be a compelling reason for granting a waiver from Schedule 3 requirements.  The result surely reflects a commendably compassionate approach to the case by the presiding Tribunal member (Margie Bourke). However, one does have to wonder how much the circumstances that developed after the application was lodged (the sponsor’s pregnancy and a worsening in her employment situation due to having been made redundant) really did contribute to the outcome. What if the sponsor had not been 8 ½ months pregnant at the time of the hearing? Would the simple fact that she was financially dependent on the sponsor have really been enough? We have seen in 1409924 that having a child with a medical condition that requires special care after the application is lodged may not be taken into account. The converse surely seems to be the case – that if a couple has a child who needs special medical attention and that situation is in existence at the time of the application – it appears likely to be accepted as a compelling reason not to apply Schedule 3.