If you are lodging an onshore Partner visa application (820/801) and you are either
(i) unlawful or
(ii) hold a bridging visa
You must satisfy Schedule 3 requirements as per Migration Regulation 820.211(2) (d) (ii) which states…
“(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied there are compelling reasons for not applying those criteria.”
The Migration Regulations do not define ‘compelling reasons” and this means that the meaning of this open to interpretation. However DIBP have what is known as the Procedures Advice Manual (PAM) which DIBP officers use as a reference to make this interpretation.
I think it is fair to say that most visa applicants have no idea at all that the PAM even exists and hence they will be totally unaware when DIBP change how they are interpreting such undefined words as ‘compelling reasons”. Hence many applicants make onshore Partner applications when they are affected by Migration Regulation 820.211(2) (d) (ii) having no idea they face a problem and are shocked when DIBP write to them giving them the opportunity to provide compelling reasons. I certainly see a steady stream of applicants clutching such DIBP letters.
Some onshore Partner visa applicants will have heard through various means that if they are affected by the Schedule 3 provisions above (Migration Regulation 820.211(2) (d) (ii)) that if they have been in the relationship for more than 2 years prior to applying or if they have been in the relationship for more than 1 year and they had an Australian Citizen child of the relationship that DIBP would provide a ‘waiver’ of the Schedule 3 criteria. This interpretation was contained in the PAMS. Letters sent out by DIBP case officers in these circumstances normally helpfully quote these as examples of ‘compelling reasons’.
DIBP have now changed their policy interpretation of ‘compelling reasons’. The crucial new wording of the DIBP policy on this matter now states…
“….officers should consider circumstances on a case by case basis.
In doing so, however, officers should be mindful that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status. The provisions are not intended to give, unfair advantage to persons who:
- fail to comply with their visa conditions or
- deliberately manipulate their circumstances to give rise to compelling reasons or
- can leave Australia and apply for a Partner visa outside Australia.”
So be warned what has worked in the past may very well not now work. It seems that the pervious long-term relationship waiver and even the waiver applying where there is an Australian citizen child of the relationship may well no longer be seen by DIBP as a compelling reason to provide the Schedule 3 waiver.
It is my view that potential applicants who are affected by Schedule 3 should seek experienced professional advice before they apply to DIBP. It is an expensive mistake to have an onshore Partner visa application refused. Also be aware there is no guarantee that such a decision will be set aside by an appeal to the Migration Review Tribunal (MRT).
If you have applied and your get a letter asking you to demonstrate compelling reasons to waiver Schedule 3 – don’t do anything without getting immediate experienced professional advice.
This is a major change in the application of Migration Regulation 820.211(2) (d) (ii) – the words of the Migration Regulation are unchanged but the meaning of those words is now very different and everyone affected now needs to proceed with caution. This has been done as DIBP clearly feel that the previous generous interpretation of this waiver was being misused and their reasoning is, I assume, that people are doing the wrong thing intentionally to gain an advantage. Equally it seems they feel that this means that offshore applicants are being disadvantaged.