Broadly talking, candidates for an onshore Accomplice (Subclass 820/801) visa are required to carry a substantive visa at time of lodgement.
The place a Accomplice visa applicant doesn’t maintain a substantive visa on the time of software, they’re required to fulfill “Schedule 3” standards except the Minister is happy that there are “compelling causes” for not making use of these standards (identified colloquially as a “Schedule 3 waiver”).
This might apply to people who don’t maintain any visa (i.e. they’re illegal), or who maintain considered one of quite a few Bridging Visas. This text discusses what potential Accomplice visa candidates who don’t maintain substantive visas want to think about.
For completeness, this text doesn’t apply to former Potential Marriage (Subclass 300) visa holders, who don’t maintain a substantive visa at time of Accomplice visa software – such people have a separate exemption.
Schedule 3 standards
An onshore Accomplice (Subclass 820/801) visa applicant who doesn’t maintain a substantive visa on the time of software should fulfill Schedule 3 standards in 3001, 3003, and 3004.
This is applicable except they entered Australia as a Subclass 995 Diplomatic visa, or as a “particular objective” visa holder – which normally may be very restricted people.
Put very merely, Schedule 3 standards:
- 3001: requires the Accomplice visa software to be made inside 28 days of the applicant final holding a substantive visa;
- 3003: applies to candidates who haven’t held a substantive visa after 1 September 1994, and on 31 August 1994 was an “unlawful entrant” or didn’t maintain a visa legitimate past that date. They’re required to reveal that:
- the applicant turned an unlawful entrant (or and not using a substantive visa) due to components past their management;
- there are compelling causes for granting the Accomplice visa;
- the applicant has complied considerably with the situations that utilized to any visas they held (together with bridging visas);
- the applicant would have been entitled to be granted the visa if they’d utilized earlier than changing into illegal;
- the applicant intends to adjust to the situations of the visa if granted; and
- the applicant’s final visa was not topic to a situation stopping them from being entitled to be granted an extra visa whereas they remained in Australia;
- 3004: mirrors that of 3003, however applies to candidates who after 1 September 1994, ceased to carry a substantive visa or entered Australia unlawfully after that date.
Please word that there are some nuances to the above, which is a simplified abstract of the Schedule 3 standards.
Those that are unable to fulfill the above Schedule 3 standards, should have interaction the waiver provisions as set out beneath. This is able to apply for instance to people whose substantive visa ceased over 28 days earlier than they apply for the Accomplice visa.
“Compelling Causes” to waive Schedule 3 standards
Accomplice visa candidates who don’t fulfill Schedule 3 standards as set out above, should fulfill the Minister that there are “compelling causes” for not making use of these standards.
“Compelling causes” should not outlined within the laws, and as such ought to be thought-about on a case-by-case foundation. Within the matter of Waensila, the Full Federal Courtroom decided that decision-makers should contemplate all the visa applicant’s circumstances up till the time of resolution (i.e. they don’t seem to be restricted solely to concerns on the time of software).
Importantly, being in a accomplice/married relationship and the hardship suffered from separation if pressured to depart and apply exterior Australia, wouldn’t of itself represent “compelling causes”. The Division’s view traditionally has been that such separation is widespread to Accomplice visa purposes (notably offshore ones), and so additional causes are required past this.
Examples of issues which could represent compelling causes embrace circumstances the place:
- there are Australian kids with a hyperlink to the visa applicant; or
- the Australian sponsor has a demonstrable psychological/bodily dependency on the visa applicant.
Below Departmental coverage, decision-makers are inspired to think about quite a lot of the applicant’s circumstances together with any historical past of non-compliance with visa situations, period of/causes behind any illegal intervals, present household composition, and steps the applicant has taken to turn out to be lawful and so forth. The overarching view is that these provisions mustn’t present an unfair benefit to people who’ve did not adjust to their visa situations, intentionally manipulated their circumstances, and/or may apply for the offshore Accomplice visa.
Additional info
Hannan Tew Attorneys have assisted quite a few people with sophisticated immigration circumstances in making use of for Accomplice visas, together with with strategic planning round this. The brink in satisfying the Schedule 3 standards or in any other case waiving it on the premise of “compelling causes” usually require cautious consideration and articulation.
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