The Full Court of the Federal Court has issued a decision which is likely to transform the way that applications for partner visas are assessed in Australia. How often does that happen? Not often. It is one that has the potential to impact the lives of many visa applicants.
The Full 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 made to overcome Schedule 3 issues. Circumstances that have arisen after the application was made can and must be taken into account.
What was the case about?
Both the Department and the Tribunal took the view that since the matters that were relied on by the applicant were not present at the time of his application for a partner visa, they could not be considered as “compelling reasons” for not applying the Schedule 3 criteria.
The Full Court held that the Tribunal had committed jurisdictional error by construing subclause 820.211(2)(d)(ii) to mean that the only matters that could be considered as compelling reasons for not applying Schedule 3 had to be in existence at the time of the lodging of the partner visa application.
In short, compelling circumstances in effect after an application can now be put forward to get a partner visa approved.
For an experienced migration agent, this is massively important and a great help to clients affected by a period without a visa.
