Brightstone recently won a partner visa case which had both schedule 3 requirement issues and the relationship breaking down.
The client first came to us when his substantive visa had ceased for almost a year. He was waiting for renewal of his student visa. However, considering he had already renewed his student visa several times over a 10 year period, we advised that the prospects of success was very low on that application. Considering he was facing a potential visa refusal record, we advised the client to immediately lodge a partner visa application as soon as possible.
One of the factors the Department will consider for the schedule 3 requirement is whether the person has made little or no effort to regularise their status. Thus, lodging the partner visa application as soon as possible after the substantive visa ceased increases chances of meeting the schedule 3 requirement.
Luckily, the client proceeded with our advice. However, a year later, we were advised that the client was no longer in a relationship. After discussing with the client, we identified that he may have been a victim of family violence.
Despite the relationship breaking down, we were able to win the partner visa application which was tainted with both the issue of no longer having a sponsor and schedule 3 requirement.
Background
The client had been living in Australia for almost a decade on a series of student visas, without completing any of his courses.
He was in a relationship with an Australian partner but they did not live together until several months before consulting with our lawyers. We advised that although they did not live together, they may already satisfy the definition of a de facto partner relationship per immigration law.
Difficulties with this case
The main difficulties with this case were:
- The couple had only been living together for several months.
- The visa applicant’s substantive visa had expired for over a year before he enquired with us so he had to meet the additional schedule 3 requirement.
- Subsequently, during processing of the partner visa application, he and his sponsor ended the relationship and he no longer had a sponsor.
For the schedule 3 requirement, we originally submitted arguments to waive the requirement based on compelling reasons involving hardship of the Sponsor should he be required to leave Australia as the Sponsor was emotionally and financially dependent on our client and several other reasons involving the impact on the Australian Sponsor. Thus, when the relationship ended, such reasons became irrelevant and may impact on the decision maker in finding whether the reasons were sufficiently compelling to waive the schedule 3 requirement.
So how did we find a solution?
We had to prepare the application very carefully and drafted legal submissions which clearly addressed both the ‘compelling reasons’ for this case and the existence of family violence allowing the grant of the visa despite the relationship ending.
We also quoted several case laws in the application of the schedule 3 requirement which allowed the existence of compelling reason at any time before a decision is made.
After submitting the legal submissions, the Department granted him with both the temporary and permanent partner visa.
If you have overstayed your visa and want to see if you have any options to remain in Australia, you can get in touch with us to discuss further: Book a Consultation
Testimonial
ZL
Overcoming schedule 3 requirement
I cannot thank Adele and the team at Brightstone enough. They really are lifesavers when it comes to immigration matter. I remember when I first met Adele, I knew I was in the hands of professionals and she genuinely cared about me and my case. Adele had always displayed excellent knowledge and expertise when dealing with my complicated case. She is also very detailed and often spots all the mistakes in my documents , giving me the opportunity to fix them up before lodging it to the Department. In the beginning, I felt there was no hope to my case. I had been living in Australia for almost 10 years by that time but unable to get a proper visa. I was on a bridging visa at that time and Adele assessed the situation and immediately told me that I should act fast before the application was refused. She could predict it would be most likely be refused and, to her prediction, it was refused several months later. The Brightstone Migration team is extremely responsible, responsive and professional. Whenever I had a question, she would be very quick to respond and she explained things in an easy to understand way. Even though I was in a complicated situation, Adele made it seem so easy and simplified my options for me. Unfortunately, we faced a lot of unexpected changes during this process but I never panicked as I felt I was in safe hands. Whenever a change happened, they immediately changed their tactic and strategy for me. This is different to the agents and lawyers I have dealt with in the past who may take days and weeks to reply or never explain to me clearly what we are going to do about my case when there are these changes. It was like a rollercoaster. One day I thought I was going to lose all my chances, Adele managed to salvage the case and I am now a permanent resident already. I am so grateful that she never gave up even when I was about to give up my own case. I would recommend Adele and her team to anyone who is looking for migration help. They are not cheap but you will be rest assured that the professionalism and expertise is at the highest level you can ask for and you will be in safe hands. Thank you again to Adele and her team.
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