WAENSILA’S CASE COMPELS CHANGES TO DEPARTMENT OF IMMIGRATION’S GUIDELINES ON SCHEDULE 3 CRITERIA

For a long time Department of Immigration & Border Protection (DIBP) guidelines requires, an applicant who at the time of lodgment of his/her onshore Partner (Temporary) subclass 820 visa who did not hold a substantive visa or who is an unlawful resident, then he/she must satisfy the Schedule 3 Criteria “at the time of lodgment of the application.”That essentially meant that the compelling circumstances being relied upon must have been in existence at the time the application for the partner visa was lodged. If those “compelling circumstances” did not exist then the application would be refused and if a review application is lodged with the Migration Review Tribunal (MRT) likewise the MRT would also affirm the refusal decision.

According to those guidelines “compelling circumstances or reasons” for waiver of the Schedule 3 Criteria can include:-

• Where there are dependent children born of the relationship; or
• The relationship between the applicant and the sponsor had been for 2 years or more.

There are also other circumstances that can also be considered compelling such as if the visa applicant is the sole breadwinner of the family and the sponsor is not working, or if the sponsor suffers from a medical condition and depend heavily on the support of the visa applicant. In such situations the interest of the Australian citizen or permanent resident would be at risk if the visa applicant is compelled to depart from Australia to lodge his/her application and therefore is not present to provide that support, whether financial or otherwise.

The term ‘compelling” is not defined. According to the Macquarie Dictionary “compel” and “compelling” refers “to force or drive, especially to a course of action. In the context of  r.1.20J of the Migration Regulations, the Full Court of the Federal Court in Babicci v MIMIA (2005) FCAFC 77; (2005) 141 FCR 285 at (24) noted that……“there are shades of differences between various dictionary definitions of ‘compelling.” But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision maker to make a positive finding that the prohibition contained in regulation 1.20J (1) should be waived.

Fortunately since the recent case of Waensila v Minister of Immigration & Border Protection 2016) FCAFC 32 (11 March 2016) the Full Court of the Federal Court unanimously held that “there is no “temporal limitation on when the compelling circumstances relied on for a Schedule 3 “waiver” must have existed.”
The Court held that the proper interpretation of Subclause 820.211(2)(d)(ii) is that compelling circumstances can be considered without regard to when they occurred. Therefore, the Department and the Tribunal are not confined to considering compelling circumstances that existed at the time that the application was lodged. Circumstances that have arisen after the application was made can and must be taken into account. 

Partner visas are one of the very few pathways whereby unlawful persons can have the opportunity to regularize their visa status if they are in a relationship with an Australian citizen or Australian permanent resident. Before Waensila the only way for the applicant to lodge a valid application is to satisfy the Schedule 3 Criteria or rely on the compelling reasons existing at the time the application was lodged. Waensila changes the whole ball game and greatly increases the opportunities for unlawful resident applicants to lodge valid partner visas.

Since Waensila the DIBP issued an update in PAMS following Waensila case and issued the following announcement…. “Circumstances constituting compelling reasons can arise at any time, up until the time of decision and s.65 delegates must have regard to submissions by the visa applicant as to any compelling reasons occurring after the date of application, which may continue to exist at the time of decision.”

Following Waensila’s case, James Tan Immigration Lawyer successfully represented a client at the MRT on 05 April 2016 where the Decision of Waensila’s case was submitted and the Tribunal accepted James Tan’s submission and remitted his client’s application back to the DIBP with the recommendation that the applicant has met the criteria for a Subclass 820 (Partner (Temporary)) visa.

If you are an intending applicant for the Partner (Temporary) subclass 820 visa and you do not currently hold a substantive visa or is residing in Australia unlawfully but you are in a relationship with an Australian citizen or Australian permanent resident you are invited to contact James Tan Immigration Lawyer immediately for advice. Who knows…….you may be eligible to apply for the Partner visa that you so desperately need to remain in Australia.