Visa Overstayers And Partner Visas: A New Conundrum

Australian visa laws are designed to encourage visa holders to move seamlessly from one visa to another. However, in certain circumstances, visa holders may find themselves not holding any visa (the law calls them “unlawful non-citizens“) or holding bridging visas.

In such cases, persons applying for another visa are often required to meet additional criteria known as Schedule 3 criteria (which essentially require the applicant to show that they were not the holder of a substantive visa because of factors beyond their control). In the context of partner visas, which is the subject of this article, Schedule 3 criteria may be waived if compelling circumstances can be demonstrated.

Until 30 June 2014, policy on the Schedule 3 waiver was that compelling circumstances would be made out if the partner visa applicant has an Australian child from the relationship or if the relationship with the Australian was “long standing” (i.e. subsisting for at least two years).

On 1 July 2014, the policy on Schedule 3 was tightened significantly. Specifically the policy states that circumstances would not be compelling where a person has remained unlawful and made no effort to regularise their status despite being in a long term relationship with an Australian; and despite the hardship that would be caused to the Australian partner as a result of separation should the applicant pursue an offshore application.

It would seem that waiving Schedule 3 would now be a very difficult exercise.

Lester Ong (MARN 0427625) regularly acts in complex migration cases and appeals. He is also available to provide consultancy services to migration agents handling difficult cases. Please email Lester or call 08 9426 6222.