RM came to us in a sad and sorry state. He had allowed his Working Holiday Visa to expire, and he was now unlawful for over four years. During this period, he was fortunate enough to meet the girl of his dreams, and he wanted to spend the rest of his life with her. His partner, equally smitten with RM wanted the best for him, and she was very unhappy that he was unlawful, as she worried that he may be detained or deported from the country, and separated from her.
Even though RM was unlawful, he had the option of lodging a Partner Visa whilst still onshore in Australia.
A Subclass 820 visa, is one of the few visas that can be lodged when a person is unlawful.
One of the obstacles to having a Partner Visa granted onshore when you have been unlawful at the time of application, is getting over a hurdle called Schedule 3.
Schedule 3 states that a Partner Visa may only be granted to a person who did not hold another substantive visa at the time of application for the Partner Visa, where compelling or compassionate circumstances of sufficient magnitude exist to the extent that the Partner Visa should be granted. (Note: a substantive visa is any visa other than a Bridging Visa).
As RM did not hold a substantive visa (in fact he did not hold any visa) at the time of application for his Partner Visa he needed to overcome the requirements of the Schedule 3 criteria.
We lodged the Partner Visa on his behalf, without the need for him to attend the Department of Home Affairs office, as there was no other way to “make” him lawful, and his partner desperately wanted him to remain in Australia.
As a result of lodging the application, he was granted a Bridging Visa C, and not a Bridging Visa E, which she would have been granted if he had attended the DHA offices prior to lodgement. After so many years of fearing a tap on the shoulder from an immigration official, he could suddenly relax and start to really enjoy his time in Australia.
Whilst the Bridging Visa C came with no work rights, we were able to apply on his behalf and he was granted work rights within approximately four weeks. He was thus able to remain on his Bridging Visa C whilst his visa application was being processed, and he was also able to earn a living for himself and his partner.
The only downside of a Bridging Visa C is that it is not possible to travel on the visa, as leaving Australia causes the Bridging Visa to cease. If RM had had any kind of family emergency during the processing period of the visa, he would have been forced to make a choice between staying in Australia, and travelling back to his home country to see his family, and risk not being allowed back into Australia, as he would have needed to apply for a Visitor Visa, if such a situation had occurred. Given that a three year ban on Temporary Visas applies to a person who has been unlawful for a period in excess of 28 days, it is likely that a Visitor Visa may have been refused, had he needed to apply for one (although we have had experiences of compassionate case officers granting Visitor Visas in similar circumstances to RM’s).
During the Partner Visa processing period, RM and his partner had a little baby girl, much to the delight of her parents. This took care of the Schedule 3 requirements, as an Australian child born to a couple is automatically considered to be a compelling and compassionate circumstance. The Australian child must however have both parents names on the birth certificate, and parental responsibility must be shared by both – in other words there must be no court orders depriving the the visa applicant (in this case the father) of parental rights.
At this stage you are probably wondering what else would constitute compelling and compassionate circumstances sufficient to overcome the requirements of Schedule 3. Well to be honest, the facts of each Partner Visa application in similar circumstances – i.e. where the visa applicant has been unlawful, are assessed individually by the decision-makers at the DHA. Some circumstances that have been regularly accepted as being compelling and compassionate, are where the Australian sponsor is physically or psychologically dependent on the visa applicant, for example because of significant ill-health. Previously, long-term relationships (in excess of two years) were considered to be a compelling and compassionate circumstance, however this is not the case today. Recently, in a case focusing on a different matter (i.e. not an unlawful applicant), the court held that a loving and dependent long-term relationship (in this case it was in excess of four years) could itself constitute a compelling and compassionate circumstance. This case is however distinguishable on its facts, and may not be applied by case officers assessing unlawful Partner Visa applicants.
I do digress however. RM was granted his Partner Visa after about 12 months. Initially it was a Temporary Partner Visa, but he quickly progressed to a Subclass 801, Permanent Partner Visa within about six months after the initial grant.
Once RM had been lawful and on his visas for four years, including one year is a permanent resident, he applied for his Australian citizenship. Whilst a submission was required to persuade the DHA, that he was a person of good character (there was a slight allegation that because he was unlawful for such a long time, he was not), he was ultimately successful, and is now happily an Australian citizen, a doting dad, a loving husband and a very successful migrant.
It was a great happy ending for RM, his partner, his child, and his very worried Mum back in his home country.
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