If you're applying for an Australian partner visa with a complicated immigration history, you may need to tackle the challenge of a Schedule 3 waiver. This quick guide will walk you through the intricacies of the process, helping you understand what's typically required and how to present your case in a way that is coherent for immigration's case delegate.
Understanding Schedule 3 Criteria
Schedule 3 of the Migration Regulations 1994 sets out additional criteria for certain visa applicants, including those applying for partner visas. These criteria typically apply if you:
1. Don't hold a substantive visa at the time of application
2. Have overstayed a previous visa
3. Are in Australia unlawfully
The key Schedule 3 criteria (3001, 3003, and 3004) generally require that:
- You apply for the partner visa within 28 days of becoming unlawful
- Your lack of a substantive visa was due to factors beyond your control
- There are compelling and compassionate reasons for granting the visa
The Waiver Process
If you don't meet these criteria, don't panic! The Department of Home Affairs can waive the Schedule 3 requirements if there are "compelling reasons" to do so. This is where your personal circumstances and the strength of your case become crucial.
What Makes a Compelling Reason?
The key to a successful Schedule 3 waiver is demonstrating 'compelling reasons' why the criteria should not be applied to you. These reasons can be varied, but they generally need to be significant. Some examples might include:
- Severe illness or injury that prevented you from applying earlier
- Circumstances beyond your control that led to your current visa situation
- Significant hardship that would result if you had to leave Australia to apply offshore
It's important to note that your relationship itself, while important, is not typically considered a compelling reason on its own. The Department of Home Affairs is looking for reasons why you couldn't have applied earlier or why it would be unreasonable to expect you to leave Australia to apply.
Providing Evidence
When requesting a Schedule 3 waiver, it's crucial to back up your claims with solid evidence. This might include medical records, statutory declarations, or other official documents that support your case. The stronger your evidence, the better your chances of having the waiver granted.
Timing of Compelling Circumstances
A crucial point to remember is that compelling circumstances are not limited to those that existed at the time of your application. Thanks to a significant court decision (Waensila v Minister for Immigration and Border Protection [2016]), circumstances that arise after you've applied can also be considered. This means you can continue to build your case for a waiver even after lodging your application.
Crafting Your Waiver Request
When putting together your waiver request, you will need to have at least 2 correctly completed commonwealth statutory declarations from family or mutual friends who can confirm that the both of you are in a genuine and continuing de facto or spousal relationship.
Address each factor in detail. Don't assume the decision-maker knows anything about your situation.
Support each claim with documentary evidence. This could include:
- Relationship evidence (joint bank statements, lease agreements, photos, travel records)
- Statements from friends and family attesting to your relationship
- Medical records if health is a factor
- Employment records and references
- Evidence of community involvement
When applying for a Schedule 3 waiver for a partner visa, it's crucial to address any past visa breaches with complete honesty and transparency. Explain the circumstances surrounding these breaches in detail, demonstrating a clear understanding of how and why you became a bridging visa holder at the time of your partner visa application. Show genuine remorse for your actions and emphasise your commitment to adhering to Australian immigration laws moving forward. This openness can significantly strengthen your case, as it demonstrates integrity and a willingness to take responsibility for past mistakes.
While it's important to address past issues, your application should primarily focus on your current situation and future plans in Australia. Highlight how your circumstances have changed since any previous breaches, and outline your extensive ties to Australia (if any).
Present your story in a clear, chronological manner that shows how your situation has evolved over time. This narrative approach helps the case officer understand the full context of your journey and how you've arrived at your current position. Be sure to include key milestones, turning points, and any significant events that have shaped your path. This comprehensive view of your history in Australia can provide valuable insights into your character and circumstances.
If there are any unusual or particularly compelling aspects of your situation, make sure to emphasise these in your application. This could include exceptional hardships you and/or your Australian partner faced which affected you, unique contributions you make at work, or extraordinary circumstances that caused it to be impossible for you to apply for your visa offshore.
Finally, it will be helpful to highlight any skills or expertise you bring that are in demand in Australia. Discuss your contributions to the local community, such as volunteer work or involvement in community organisations. If you have a history of paying taxes or creating employment opportunities, be sure to mention this as well.
Pursuing a Schedule 3 waiver involves complex considerations and often uncertain outcomes. Given the nuanced nature of these applications, it's highly advisable to consult with an Australian immigration law expert before proceeding. Professional guidance from someone with successful experiences in schedule 3 waivers can be invaluable in navigating this challenging process.
Need help with deciding on which one is more suited to your circumstances? Have some burning questions about the 482 visa or 494 visa that are still unanswered? The content on this page does not constitute legal or immigration advice. Australian immigration doesn't have to be complex and we can help with your unique circumstances. To seek legal advice or information that is specific to your situation, please contact us.
