Accidentally overstayed, must now satisfy Schedule 3 for partner visa :-(

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Accidentally overstayed, must now satisfy Schedule 3 for partner visa :-(


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Old 03-23-2013, 06:49 AM
Jae Jae is offline
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Accidentally overstayed, must now satisfy Schedule 3 for partner visa :-(

I'm a US citizen who is married to an Australia citizen. I spent most of 2012 in Australia on a tourist visa. In order to avoid having to fly overseas every 3 months, I applied for an extended stay visa that would allow me to stay for 6 months. I mistakenly believed this was literally just an extension to my original tourist visa and happily continued on my merry way believing that my original expiry date of Nov 2012 still applied.

I just found out last week that wasn't the case and that the extended stay visa was a separate visa and actually cancelled my original tourist visa, with a new expiry date of Sept 2012. Oops. There was nothing to indicate clearly that it was a separate visa and the new expiry date was contained in an email that was sent to my husband (since he was the sponsor of this new visa). He never opened the email, thinking it was just a receipt for the payment, and of course he never forwarded it to me.

One day before my original expiry date, we lodged an application for a partner visa, with the assistance of a very expensive migration lawyer, who now claims he also did not know the original tourist visa and the extended visa were two separate visas and that the latter cancelled the former. Upon lodging my partner visa, I was granted a bridging visa C.

When I went in last week to immigration to update my passport details and inquire as to whether or not the "no travel" restriction on my BVC could be lifted, it was then that I was informed that I had unwittingly spent nearly two months in Australia unlawfully! I was also told that, because I had been unlawful, I would now have to satisfy "Schedule 3 criteria" in order to get my partner visa:
Criterion 3001 requires that the application is made Within 28 days of the last day on which the applicant held a substantive visa or from the time notice is given.

Criteria 3003 and 3004 require that the applicant satisfy several sub-criteria which include the following:
-the applicant is not (i.e. at time of application) the holder of a Substantive visa because of factors beyond their control', and
-there are compelling reasons for granting the visa; and
- the applicant complied substantially with the conditions of their last visa (apart from any condition breached simply because the applicant ceased to hold a visa); and
-the applicant would have met all the criteria for grant of the visa in this application apart from the Schedule 3 criteria, on the last day they held a substantive visa.
My biggest concern is being able to satisfy the criterion for "factors beyond my control". I'm not sure what was essentially an honest mistake would count as being beyond my control. Our migration lawyer has said he does not know how to deal with something like this. I have 19 days left to come up with a response to immigration.

Does anyone know, if I don't satisfy that requirement, does that mean I will have to go back to America and lodge another partner visa off-shore?

If so, does the 3 year exclusionary period apply to spouses or can I lodge again right away?

I am so furious that the lawyer did not catch this and I really do not want to go back to America without my husband. We have been nearly bankrupted by the process of getting me here so far and we really cannot afford an expensive mistake like this. Would it be worth it to fire this lawyer and hire another one to sue him for malpractice? Even the girl I spoke to at immigration was surprised that he claims not to have known they were two separate visas, as it is such a basic thing.

I am at a loss as to what to do. Our options seem very limited right now, and none of them very attractive.


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Old 03-23-2013, 10:27 AM
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Hi Jae -

Sorry to hear of your troubles! It certainly sounds like your migration attorney was not giving you sound advice - if you want to report him for disciplinary action, I suggest you visit http://mara.gov.au and file a complaint - it will cost you nothing, and would likely be far more effective than a lawsuit. As far as your lawyer not having any idea how to handle a Schedule 3 Waiver, again, I'd report that too - it sounds like your attorney may not be very well informed about migration regulations - the fact that attorneys get a "free pass" on the immigration law knowledge test when they apply for a license to be a Registered Migration Agents (while the rest of us have to take 6 months of grueling courses and written exams with an 80% dropout rate due to the severity of the courses) produces the kind of results you see.

Now let's move on to your case! Short answer: Yes, if you do not satisfy the Schedule 3 criteria, you would not be able to lodge an onshore partner visa. The Schedule 3 criteria are a part of the time of application requirements for the onshore partner visa (820/801) but are not part of the requirements for the offshore partner visa (309/100).

Next short answer: The 3-year exclusion period, if it were imposed on you, would not limit your ability to lodge permanent visa applications including the partner visa. The 3-year period generally applies to temporary visas, including student visas, temporary work visas such as the 457, and perhaps importantly in your case - visitor visas. Many people who lodge offshore partner visas apply for a visitor visa to visit their partner in Australia during the processing period, which is now quoted at 12-15 months.

My thought would be to explore the options of the Schedule 3 waiver, and consider either writing it yourself or having a Registered Migration Agent assist you. 3001 is obvious - you made the application more than 28 days after you held a substantive visa. It's 3003 and 3004 you need to focus on. An honest mistake, especially if it was the result of professional advice from an immigration attorney, may be seen as a factor beyond your control as you at all times intended to be lawful and relied on the information provided by others in order to achieve that intent. I assume you can show how you complied with all the other visa conditions (that should be detailed in the waiver request, especially how you did not work, etc) and would have met all the requirements for the partner visa if you had applied in Sep 2012 before you held the visa. The actual requirements of 3003 and 3004 are simplified in the text that you posted - I assume that's from DIAC. A competent agent will look at the exact legal language of this Schedule (or you should if you're doing this yourself) and address each of the sections specifically and completely. Especially look at the compelling reasons criteria and focus on what would happen to your marriage and other aspects of your life (and your husband's life) in Australia if you were forced to leave Australia and wait out an offshore application for 12 months or more - would your husband be able to leave Australia? If not, what would so much time apart do to your lives? Would you be able to afford to have 2 homes for that year? If your husband had to leave Australia to be with you and support you in America, would other Australians be disadvantaged by his absence (ie, people who might benefit from his work and presence here in Australia), etc. These are some of the things that can be factored into a successful Schedule 3 waiver submission.

It's impossible for me to predict what chances you may have to get the Schedule 3 Waiver, but I've seen them granted in situations far worse than yours if that means anything. Part of the decision will be determined by all the details of your situation and how much evidence can be provided to satisfy the various parts of the Schedule, and the other will be determined by the opinion of the case officer evaluating your waiver request, which is much harder to predict.

Please advise if I can be of any further assistance -

Best,

Mark Northam

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Old 03-23-2013, 12:24 PM
Jae Jae is offline
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Mark, thank you for such a helpful reply!

Since I have already lodged an onshore partner visa, does this mean it will be thrown out and I will have to do it all again? Aside from getting the waiver, is there any way I can avoid having to leave the country?

Of course being forced to leave would be devastating for us on so many levels. We married in September last year and I feel that for a couple to be apart during the time when they should be laying the foundations for a strong marriage is a recipe for disaster. We were also hoping to start a family later this year, as I'm pushing 30 and my husband is on the wrong side of 40. My being stuck in America would mean postponing that.

His mother, a permanent resident, is 90 years old with dementia and we are her only family here who can care for her. Since my husband works and I do not, that responsibility falls heavily on my shoulders. Even if we didn't have his mother to worry about, I couldn't sponsor him for an American visa. I wouldn't meet the income requirements. I closed my business last year when I came here and we made the decision that I would move here. I also sold pretty much everything I owned, so I would have no car, no furniture, and my house is currently occupied, so I would have nowhere to live.

Naturally, all this would impose a HUGE financial burden on us. Between reapplying for the visa, the airfares, and money sent over with me to support me until I could find a job, we'd probably be looking at $10-15k at the very least. There is no way our current financial situation could support that.

The case worker has indicated she is not interested in hearing excuses (unless I misread the tone of her email) and I'm concerned that nothing we say is going to be good enough for her. I could probably come up with other reasons why we should get a waiver (it WAS an honest mistake, after all!), but those items above are probably what I would focus on. Are those the sorts of reasons that a waiver would be granted for?

Depending what that lawyer tells us on Monday, we may choose to find someone more competent to help us. He charges us $400 an hour, which I think is just too much money for someone who has made such a major mistake as this. Would you suggest that using a migration agent who is not a lawyer would be the better way to go, and if so, what is the standard going rate for such people?


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Old 03-23-2013, 12:49 PM
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Hi Jae -

$400 an hour for that kind of a mistake and he's not sure how to handle a Schedule 3 waiver??? Wow. I don't mean to comment about the "competition", but even if this guy said he'd do the waiver for free, which is an evil word in most lawyer's vocabularies, if I were in your shoes I'm not sure I'd trust him to get the job done thoroughly and properly, especially given what's at stake.

As far as not knowing about the previous visa situation, no reputable agent I know takes on a client or even discusses a specific plan of action without first ascertaining their current visa situation - it takes about 30 seconds with an online system called VEVO, and it ensures that the agent is fully aware of the client's current situation, and especially any important dates such as expiration dates.

We handle these sorts of matters and I'd be happy to assist - From what you've said I think you have good grounds for a Schedule 3 waiver, especially because of your partner's mother's care and some of the other circumstances you described. No one can guarantee you an outcome since DIAC is making the decision, and I need to see your full paperwork for the application and DIAC's request to you to have a better idea of the specifics.

I'd be happy to provide an initial consultation for you by Skype or at our offices in Sydney, and if you choose to engage us to create your Schedule 3 Waiver request, our charge would be very competitive (and far less than $400/hr!) - please email me at [email protected] if I can assist any further or you'd like to schedule the consultation, and we'd be happy to work with you.

Best,

Mark Northam








Quote:
Originally Posted by Jae View Post
Mark, thank you for such a helpful reply!

Since I have already lodged an onshore partner visa, does this mean it will be thrown out and I will have to do it all again? Aside from getting the waiver, is there any way I can avoid having to leave the country?

Of course being forced to leave would be devastating for us on so many levels. We married in September last year and I feel that for a couple to be apart during the time when they should be laying the foundations for a strong marriage is a recipe for disaster. We were also hoping to start a family later this year, as I'm pushing 30 and my husband is on the wrong side of 40. My being stuck in America would mean postponing that.

His mother, a permanent resident, is 90 years old with dementia and we are her only family here who can care for her. Since my husband works and I do not, that responsibility falls heavily on my shoulders. Even if we didn't have his mother to worry about, I couldn't sponsor him for an American visa. I wouldn't meet the income requirements. I closed my business last year when I came here and we made the decision that I would move here. I also sold pretty much everything I owned, so I would have no car, no furniture, and my house is currently occupied, so I would have nowhere to live.

Naturally, all this would impose a HUGE financial burden on us. Between reapplying for the visa, the airfares, and money sent over with me to support me until I could find a job, we'd probably be looking at $10-15k at the very least. There is no way our current financial situation could support that.

The case worker has indicated she is not interested in hearing excuses (unless I misread the tone of her email) and I'm concerned that nothing we say is going to be good enough for her. I could probably come up with other reasons why we should get a waiver (it WAS an honest mistake, after all!), but those items above are probably what I would focus on. Are those the sorts of reasons that a waiver would be granted for?

Depending what that lawyer tells us on Monday, we may choose to find someone more competent to help us. He charges us $400 an hour, which I think is just too much money for someone who has made such a major mistake as this. Would you suggest that using a migration agent who is not a lawyer would be the better way to go, and if so, what is the standard going rate for such people?

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Last edited by MarkNortham; 10-22-2013 at 10:00 AM.

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Old 03-24-2013, 12:01 AM
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Hi Jae,

I'm sorry to hear about your predicament, I am in a similar situation and I have to overcome schedule 3 criteria.

I have also had a consultation with an immigration lawyer, this is my understanding:

Do not take schedule 3 criteria lightly, this is a complicated aspect of immi law which results in A LOT of visas to be rejected. If you apply for an onshore partner visa (and you have) be prepared for it to be rejected. However, it is not the end of the world. When it is rejected you have a set period to appeal to the MRT, it is a long slow process but if like me and all you really want is to be with your partner and don't really care about the actual visa rights at least you will have that.

from what I understand the processes will go something like this:

Apply for onshore partner visa - in about three weeks you will be put on a bridging visa C - in about 12-15 months time (current processing period) your visa will be accepted or rejected - if rejected you should appeal to MRT - current waiting period for a hearing is about two years - once you have your hearing MRT will either turn over the decision or not.

I cant tell you if you have grounds to have S3 removed BUT you will need help from a immi lawyer, I think you should get in contact with a new one, they might be able to help you with the shocking service the other lawyer gave you.

I'm expecting mine to be rejected and I'm applying on the grounds of compelling reasons (partner is pregnant), it is a scary, expensive process and the only comfort is I will be with my partner while all this is going on.

I would be more than happy to stay in contact as it might help to have someone in the same situation.


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Old 03-24-2013, 02:12 AM
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Also you might find this useful:

If you do not have a visa (for example over-stayers, unlawful non-citizens) or hold a type of visa known as a Bridging visa then you may be able to apply for and be granted a Partner visa but you will need to establish that your circumstances fall within:

(a) The 28 day rule

If you held a valid visa within the last 28 days and can show that:

you became unlawful because of circumstances beyond your control;
there are compelling reasons for granting the visa; and
you complied with the conditions of your previous visa

you can make an application for the visa and will be assessed about whether you meet therequirements for the 28 day rule.

OR
(b) “Compelling reasons”

Migration law allows people with “compelling reasons” to be considered for a Partner visa in Australia even if they do not hold a substantive visa when they apply. The law does not define “compelling reasons”. Departmental policy says that the following circumstances would normally be considered “compelling reasons”:

where the couple are in a long-standing spouse relationship (taken to be for at least two
years); and/or
where there are Australian citizen children from the relationship.

Other examples that may be compelling reasons include:
maternity issues where departure from Australia could complicate matters for the applicant
age related maternity issues for the applicant
separation for an extended period from the sponsor
where the applicant is the sole breadwinner and their departure would significantly impact on
the sponsor's welfare
negative impact on step-children's formative years if the applicant departs
DFAT warnings on community violence in the applicant's home country which makes it
unsafe for the applicant's circumstance
hardship caused to the relationship between the sponsor and the applicant's children if the applicant and the children have to leave Australia to make an application offshore
where the sponsor feels compelled to leave Australia with the applicant, leading to loss of
employment and income in Australia and resulting in serious financial and other difficulties for the family unit when they eventually are able to return
reasons concerning safety for the applicant and the sponsor in the applicant's home country if required to submit application offshore
the applicant's family unit and the sponsor would suffer significant psychological and material hardship if they were forced.to depart the country, and/or
• the sponsor relies on the applicant for ongoing and continuous care.


Again as you can see it is a major headache, but this does make your case stronger. If you cannot meat the requirements you listed in your post you still have the "compelling reasons", something I believe you have grounds.


Last edited by Celt in Oz; 03-24-2013 at 02:17 AM.

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Old 03-25-2013, 01:37 AM
Jae Jae is offline
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Mark-

My husband just spoke with that lawyer and he said we should try to go for the waiver based on that fact that:
-we have a loving and genuine relationship
-we are trying to start a family
-my husband's mother needs me to care for her (we will get a letter from the doctor documenting her dementia and her need for regular supervision and assistance)
-my husband would have to quit his job if he wanted to be with me in America (we will get a letter from his boss detailing what his job is, how he is important to the project, and how it would affect the hospital if he left)
-the financial burden it would place on my husband if he had to maintain me separately in America for any length of time

Plan B would obviously be to try to meet the criteria and the lawyer said that in that case, we should just explain how the email with my new expiry date went astray and how he should have double checked my status. The lawyer is not outright taking any responsibility, of course, but he did say he didn't think it would be reasonable to for someone to claim it was my fault.

Failing that, then I guess we would appeal? And try to have a baby before the hearing?

Does any of that sound like a good plan of action?

The lawyer said my case officer said they were just about to approve my application when they noticed I had been here illegally, so he thinks they will be looking for reasons to say yes rather than to say no. I hope that's the case, but I am still very nervous!


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Old 03-25-2013, 01:43 AM
Jae Jae is offline
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Celt in Oz-

Thanks for replying. Sorry to hear you are going through this, too! I would think they would take the impending birth of your child into consideration, although I get the impression that usually works more in the favour of a foreign mother than a foreign father, but it's hard to believe they would break up your family and leave your partner without you there to support her and the baby. I hope you get a ruling in your favour soon!

Do you know if when you make an appeal to the MRT if you get to stay in the country until your hearing? Like would they just put you on a bridging visa for a few years until they get around to you or something?


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Old 03-25-2013, 02:24 AM
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As my lawyer said, DIAC do not base the rules on logic.

I just feel for couples that are going through this apart, its disgusting to expect a committed couple to be apart for such an extended period.

I hope mine wont be rejected, however, I think its best to have a plan. From my understanding once DIAC has rejected the application you have a short period of time to appeal to the MRT.

If the MRT accept that your case has grounds for appeal, you will go in a big pile until the hearing. I think the current wait is two years. I believe during this period you just remain on the bridging visa. Like I said before, depending on your priorities, its not the end of the world. At least you get to stay with your partner. The MRT is separate to DIAC, and I think having that impartiality does help with genuine cases.

To be clear, I am no expert but from what you have said, I believe your ONLY chance on getting the schedule 3 criteria wavered is on compelling grounds.


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Old 03-25-2013, 07:52 AM
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Hi Jae -

My thoughts, based on the info you've provided - Plan "A" stands a good chance of success as long as the submission is written by someone qualified to do so. The reasons the lawyer mentioned make sense as we discussed on this thread over the weekend.

Plan "B" - if the lawyer is not willing to take responsibility for his mistake, that pretty much says it all about the lawyer! I don't give this option much of a chance of success now that DIAC has officially requested you explain how you satisfy Schedule 3. DIAC has a very low tolerance for mistakes made by licensed professionals, especially when they're lawyers. It's my view that there is little to any sympathy to be found on DIAC's part re: trying to "blame the agent" etc for issues where deadlines were not met, etc. If you are not to blame, and the lawyer says he's not taking responsibility, who on earth does the lawyer propose take responsibility for missing the deadline...??

Best,

Mark Northam


Quote:
Originally Posted by Jae View Post
Mark-

My husband just spoke with that lawyer and he said we should try to go for the waiver based on that fact that:
-we have a loving and genuine relationship
-we are trying to start a family
-my husband's mother needs me to care for her (we will get a letter from the doctor documenting her dementia and her need for regular supervision and assistance)
-my husband would have to quit his job if he wanted to be with me in America (we will get a letter from his boss detailing what his job is, how he is important to the project, and how it would affect the hospital if he left)
-the financial burden it would place on my husband if he had to maintain me separately in America for any length of time

Plan B would obviously be to try to meet the criteria and the lawyer said that in that case, we should just explain how the email with my new expiry date went astray and how he should have double checked my status. The lawyer is not outright taking any responsibility, of course, but he did say he didn't think it would be reasonable to for someone to claim it was my fault.

Failing that, then I guess we would appeal? And try to have a baby before the hearing?

Does any of that sound like a good plan of action?

The lawyer said my case officer said they were just about to approve my application when they noticed I had been here illegally, so he thinks they will be looking for reasons to say yes rather than to say no. I hope that's the case, but I am still very nervous!

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