Brightstone recently won a partner visa case which had both schedule 3 requirement issues and the relationship breaking down.
The client first came to us when his substantive visa had ceased for almost a year. He was waiting for renewal of his student visa. However, considering he had already renewed his student visa several times over a 10 year period, we advised that the prospects of success was very low on that application. Considering he was facing a potential visa refusal record, we advised the client to immediately lodge a partner visa application as soon as possible.
One of the factors the Department will consider for the schedule 3 requirement is whether the person has made little or no effort to regularise their status. Thus, lodging the partner visa application as soon as possible after the substantive visa ceased increases chances of meeting the schedule 3 requirement.
Luckily, the client proceeded with our advice. However, a year later, we were advised that the client was no longer in a relationship. After discussing with the client, we identified that he may have been a victim of family violence.
Despite the relationship breaking down, we were able to win the partner visa application which was tainted with both the issue of no longer having a sponsor and schedule 3 requirement.
The client had been living in Australia for almost a decade on a series of student visas, without completing any of his courses.
He was in a relationship with an Australian partner but they did not live together until several months before consulting with our lawyers. We advised that although they did not live together, they may already satisfy the definition of a de facto partner relationship per immigration law.
Difficulties with this case
The main difficulties with this case were:
- The couple had only been living together for several months.
- The visa applicant’s substantive visa had expired for over a year before he enquired with us so he had to meet the additional schedule 3 requirement.
- Subsequently, during processing of the partner visa application, he and his sponsor ended the relationship and he no longer had a sponsor.
For the schedule 3 requirement, we originally submitted arguments to waive the requirement based on compelling reasons involving hardship of the Sponsor should he be required to leave Australia as the Sponsor was emotionally and financially dependent on our client and several other reasons involving the impact on the Australian Sponsor. Thus, when the relationship ended, such reasons became irrelevant and may impact on the decision maker in finding whether the reasons were sufficiently compelling to waive the schedule 3 requirement.
So how did we find a solution?
We had to prepare the application very carefully and drafted legal submissions which clearly addressed both the ‘compelling reasons’ for this case and the existence of family violence allowing the grant of the visa despite the relationship ending.
We also quoted several case laws in the application of the schedule 3 requirement which allowed the existence of compelling reason at any time before a decision is made.
After submitting the legal submissions, the Department granted him with both the temporary and permanent partner visa.
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