Schedule 3 of the Migration law and regulations:
You are unlawful? No visa?
You want to apply for a partner/spouse visa?
You are inside Australia?
Read this important information.
These give extra criteria an applicant must meet when a partner visa (Visa 820/801) application is lodged in Australia and where the applicant has been illegal, an unlawful non-citizen. (The applicant will be in Australia and the holder of a bridging visa or unlawful when the application is lodged and in Australia when the decision is made). It doesn’t affect applications where the applicant is outside Australia.
Partner visas are far harder when an applicant for a partner visa (Subclass 820 visa) has been unlawful in Australia. In many cases the Department will refuse the visa, but we can overcome many of these by appealing. The Department does not like to grant partner visas to applicants in Australia while others have to wait outside Australia for a visa. Schedule 3 gives provision for a visa to be refused and since 2015 and 2016, Schedule 3 refusals have become far more common.
Basic details of the law and regulations will help you understand. Please contact us for advice on your individual situation):
- Previous visa refused or cancelled, and you became unlawful, i.e. no visa.
- Was the reason for becoming unlawful outside your control?
- Are there compelling and compassionate circumstances that will be sufficient to grant you the visa while in Australia?
This last point is crucial, and we can guide you on your prospects. There have been some unusual decisions at the appeal Tribunal. Examples include that having a baby or child together MAY help you but being pregnant at the time of application often WILL NOT.
Depression in the sponsor is usually not enough but serious health conditions can be. It is complicated and a good assessment of your situation is needed.
You need expert guidance; this is NOT a time for do-it-yourself visa work.
OPTIONS:
1. Appeal if you have been refused. Sometimes there are good prospects to win at appeal and we will review your case for this.
2. The appeal Tribunal will be as tough as the Department. If we do not feel you can win at appeal, we will look for other solutions that may include lodging outside Australia. Sometimes we can find other solutions.
3. If you haven’t yet lodged the visa, we can assess the case and give the best options.
TOUGH SCHEDULE 3 DECISIONS
Case Officers may not always ask you to make submission why Schedule 3 criteria should be waived. They may refuse the application without referring to you. This is when you need a Schedule 3 expert.
We have had a lot of experience with these, note two of our successes:
Case 1: Applicant had her student visa cancelled as she did not attend University when she should have. She became illegal. She and her husband of 18 months, no children, came to us for a partner ( Subclass 820 ) visa after about a year of being unlawful. We could not see that they met the Schedule 3 criteria. Their choices were to appeal, total costs over $10,000 with an uncertain outcome. If they lost the appeal she would have had to go offshore and apply again (subclass 309 or 300), total extra cost then about $10,000. A total to get back to Australia of about $20,000. Second choice was to go back to her country and lodge a new application without appealing. Total cost about $8,000 and a processing time of about 12 months. Schedule 3 does NOT apply to this, and they only had to prove a genuine relationship.
Decision: Applicant went home for the 11 months, was approved and is now back in Australia with her subclass 309 partner visa and is now a citizen. A great outcome.
Case 2: The applicant and sponsor had a baby at the time of application and the applicant was the sole provider for the family. The short story was that we appealed, won the appeal and the applicant got his subclass 820 visa. He met the Schedule 3 criteria, and we were able to prove the correct decision was to grant his 820 visa.
These are stressful situations but our advise makes the period of stress as short as possible. Call us now.