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Old 02-11-2015, 07:38 PM
wrussell wrussell is online now
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If you are legally represented, there is probably not much point in posting on a public forum. Presumably your representative is aware of the following:

The introduction of new policy guidelines on what amounts to ‘compelling reasons’ for not applying Schedule 3 criteria to applicants for Subclass 820/801 visas who are unlawful ,or who do not hold a substantive visa, has made success in such applications much more difficult.
Previously an Australia citizen child or a two year relationship would satisfy the Department.
However the new policy guidelines are much stricter-below is an extract from a letter from the Department setting out the guidelines:
Compelling reasons
With regard to subclause 820.211(2) (d)(ii), as you are unable to meet the relevant Schedule 3 criteria, I am required to determine if compelling reasons exist for not applying the Schedule 3 criteria. The Migration Regulations 1994 do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply Schedule 3 criteria 3001, 3003 and 3004 and circumstances are therefore to be considered on a case by case basis.
The provisions are not intended to facilitate persons who:
fail to comply with their visa conditions or
deliberately manipulate their circumstances to give rise to compelling reasons or
can leave Australia and apply for a Partner visa outside Australia.
Policy further states that the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria.
This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, while it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.
Consideration must be given to other factors which might also be deemed compelling to waive Schedule 3 requirements.
The term ‘compelling’ is not defined in the legislation, however the Full Federal Court in Babicci v MIMIA (2005) found that in any view of the meaning of compelling ‘the
circumstances must be so powerful that they lead the decision-maker to make a positive finding that the regulation should be waived
Migration agents need to carefully assess whether clients have a realistic chance of success with an application bearing in mind the filing fee of $6865.00, migration agent fees and other expenses.
In preparing submissions to the Department it must be remembered that the ‘compelling reasons’ are a ‘time of application’ requirement and ,strictly speaking, factors that arise after the application is lodged are not relevant.
An important issue to address is why it would not be reasonable for the parties to be separated if the visa applicant had to travel overseas to apply for a partner visa and the sponsor could not join him or her.
The writer has recently had success with submissions on this issue where the sponsor was a person with a serious medical condition who needed the daily assistance of the visa applicant.
AnotherThe introduction of new policy guidelines on what amounts to ‘compelling reasons’ for not applying Schedule 3 criteria to applicants for Subclass 820/801 visas who are unlawful ,or who do not hold a substantive visa, has made success in such applications much more difficult.
Previously an Australia citizen child or a two year relationship would satisfy the Department.
However the new policy guidelines are much stricter-below is an extract from a letter from the Department setting out the guidelines:
Compelling reasons
With regard to subclause 820.211(2) (d)(ii), as you are unable to meet the relevant Schedule 3 criteria, I am required to determine if compelling reasons exist for not applying the Schedule 3 criteria. The Migration Regulations 1994 do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply Schedule 3 criteria 3001, 3003 and 3004 and circumstances are therefore to be considered on a case by case basis.
The provisions are not intended to facilitate persons who:
fail to comply with their visa conditions or
deliberately manipulate their circumstances to give rise to compelling reasons or
can leave Australia and apply for a Partner visa outside Australia.
Policy further states that the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria.
This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, while it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.
Consideration must be given to other factors which might also be deemed compelling to waive Schedule 3 requirements.
The term ‘compelling’ is not defined in the legislation, however the Full Federal Court in Babicci v MIMIA (2005) found that in any view of the meaning of compelling ‘the
circumstances must be so powerful that they lead the decision-maker to make a positive finding that the regulation should be waived
Migration agents need to carefully assess whether clients have a realistic chance of success with an application bearing in mind the filing fee of $6865.00, migration agent fees and other expenses.
In preparing submissions to the Department it must be remembered that the ‘compelling reasons’ are a ‘time of application’ requirement and ,strictly speaking, factors that arise after the application is lodged are not relevant.
An important issue to address is why it would not be reasonable for the parties to be separated if the visa applicant had to travel overseas to apply for a partner visa and the sponsor could not join him or her.
The writer has recently had success with submissions on this issue where the sponsor was a person with a serious medical condition who needed the daily assistance of the visa applicant.
Another situation where such a separation might be unreasonable would be where the sponsor was the sole person working to support the family. situation where such a separation might be unreasonable
__________________
Westly Russell
Registered Migration Agent
Number 0316072
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