Criteria for a Temporary Partner visa (Subclass 820) application requires that the applicant must hold some kind of substantive visa at the time of the application, or they must satisfy the criteria referred to in Schedule 3 of the Migration Regulations (primarily, that the applicant has applied for a new substantive visa within 28 days of the expiration of their previous substantive visa) (Schedule 3 Criteria).
However, additional Subclass 820 criteria means that applicants do not have to satisfy the Schedule 3 Criteria if the Department of Immigration and Border Protection (Department) is satisfied that there are compelling reasons for not applying that Criteria.
The Department (via its policy), the Administrative Appeals Tribunal, the Federal Circuit Court and the Federal Court have consistently held that the ‘compelling circumstances’ relied upon when considering whether to waive the Schedule 3 Criteria must have been in existence at the time of application for the partner visa.
But, on 11 March 2016, the Full Court of the Federal Court of Australia considered this matter in Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32 and held that compelling circumstances that have arisen after the application was made can and must be taken into account.
As a result of this case the Department (despite their current policy), Tribunals and Courts must follow this decision (until and unless that case is subsequently overruled by the High Court).
This means that when deciding whether to waive the Schedule 3 Criteria, there is a much wider scope of circumstances which must be considered by decision makers.
If you require migration advice and assistance please contact Crawford Yorke (Lawyer and Registered Migration Agent) at crawford@equitaslawyers.com.au or Mayo Tuohy (Registered Migration Agent) at mayo@equitaslawyers.com.au
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