Zach Featherstone7

Immigration Solutions Lawyers have recently been advising clients of the changes to the Partner visa Schedule 3 policy, effective 1st of July 2014, which has become significantly more restrictive.

If the applicant is unlawful or on a bridging visa at the time of lodgement because his or hers substantive visa expired more than 28 days ago, then they will not be able to meet the Schedule 3 requirements for a partner visa. In these cases it is required that the applicant successfully waives these criteria on the basis of compelling reasons The lack of definition of ‘compelling reason’ in the legislation however, left it open to interpretation with the help of the guideline provided by policy.

The new policy changes have altered what constitutes compelling circumstances. Previously, the list of compelling circumstances was extensive and allowed the following factors to be taken into account; whether the applicant and sponsor are in a long-standing relationship (taken to be at least two years), separation issues for the applicant and sponsor, whether the applicant was the sole breadwinner which would mean the applicant’s departure would create severe hardships for the sponsor, and whether the applicant’s family unit or sponsor would be exposed to material and psychological hardship if the applicant was forced to depart.

The new policy guidelines have eliminated the list of compelling circumstances and indicate that what constitutes compelling circumstances is now being assessed on a case by case basis and subject to a much more restrict assessment. For example, any hardship caused by separation if the applicant is forced to leave Australia is no longer considered a compelling circumstance. Similarly, an applicant that has been unlawful for a number of years and claims compelling circumstances due to a long-term relationship with their sponsor is no longer considered a compelling circumstance.

The most concerning aspect of these changes is that it is unclear whether the new changes will be applied retrospectively. If they were to be applied retrospectively it may result in those who lodged their Partner visas before the changes came into effect being assessed adversely. However, it should be noted that the Migration Review Tribunal (‘MRT’) is not bound by the Department’s policy and they have the discretion to apply the most favourable policy to the applicant. To date, ISL has had one case before the MRT involving the new policy change. ISL was successful in having the criteria waived and the new policy not applied.

Due to the uncertainty around these new changes, ISL recommends any individual on a bridging visa or who is in the country unlawfully and who is planning to lodge a Partner visa to obtain preliminary legal advice.

Company: Immigration Solutions Lawyers
Phone: +61 (2) 9264 6432
Address: Suite 1304, World Tower
87-89 Liverpool Street
Sydney NSW 2000 Australia