Tag Archives: schedule 3 waiver

Australian Partner Visas and the Road to Residency: Part 5

11 Apr

For Part 1, click here.

For Part 2, click here.

For Part 3, click here.

For Part 4, click here.

In my previous post on this subject, I mentioned how and why I came to be stuck with having to satisfy Schedule 3 requirements and explained that the outlook was rather bleak.

I’m pleased to say that story has a mostly happy ending, resulting in me being granted a temporary residency visa! Woohoo!

The only unhappy part to the ending is owing our migration lawyer another $14,000. Ouch! But I guess he got the job done, which is what matters.

Here’s what went down. With the help of our lawyer and a barrister who specialises in immigration law, we filed three statutory declarations, along with several supporting letters, with DIAC in response to their request for information. We decided to ask for the waiver, but also supply all the information to satisfy the Schedule 3 requirements at the same time.

To waive Schedule 3, the applicant must show that there are “compelling circumstances” to warrant a waiver. These circumstances are defined as 1) having been in a relationship with the sponsor for two years or 2) having a child.

However, there is legal precedent which states that compelling circumstances cannot be limited to just those two items and there have been instances where an applicant was found to have compelling circumstances for other reasons, such as health issues, etc. In the letter our lawyer wrote, he outlined these precedents and made his case for why other circumstances must be taken into consideration.

In our case, our compelling circumstances, as outlined to DIAC, were:

1) H’s frail aged mother requires daily care, which I provide (supported by letters from her and her GP)

2) H would feel compelled to leave Australia with me if I were sent away

3) That would cause harm to his employer (supported by a letter from his boss)

4) It would put both H and his mother in a bind, in regards to her need for care and his need to be with me

We left out any references to financial hardship, as the lawyer did not think DIAC would care as much about that and he felt it would detract from the bigger issues.

Our lawyer advised that, failing to get a waiver or satisfy the requirements, I would not have to leave Australia, but would be able to appeal to the Migration Review Tribunal. In such a case, I would be on a bridging visa until my hearing, which would be in about two years.

But fortunately, that wasn’t an issue because my case officer at DIAC was apparently happy enough with our explanations. I was expecting to wait at least a few weeks, if not months, to hear what the decision would be.

Imagine my surprise to get a response just two days after filing our paperwork! Not only did my case officer say that the waiver was granted, but that my temporary residency visa had also been granted. Hooray!

However, even though I am now officially a resident, I still have to wait another two years to become a permanent resident and at least two more years after that to become a citizen, so this is by no means the last post in this series!

*Disclaimer: None of this is legal advice. If you have questions about your own visa application, you really should talk to a licensed migration agent. I’m not an expert. This post pertains solely to my experiences and circumstances- yours will probably be different.*