Broadly talking, candidates for an onshore Companion (Subclass 820/801) visa are required to carry a substantive visa at time of lodgement.
The place a Companion visa applicant doesn’t maintain a substantive visa on the time of utility, they’re required to fulfill “Schedule 3” standards until the Minister is happy that there are “compelling causes” for not making use of these standards (recognized 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 Companion visa candidates who don’t maintain substantive visas want to contemplate.
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 Companion visa utility – such people have a separate exemption.
Schedule 3 standards
An onshore Companion (Subclass 820/801) visa applicant who doesn’t maintain a substantive visa on the time of utility should fulfill Schedule 3 standards in 3001, 3003, and 3004.
This is applicable until they entered Australia as a Subclass 995 Diplomatic visa, or as a “particular function” visa holder – which normally may be very restricted people.
Put very merely, Schedule 3 standards:
- 3001: requires the Companion visa utility 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 display that:
- the applicant grew to become an unlawful entrant (or with out a substantive visa) due to elements past their management;
- there are compelling causes for granting the Companion 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 that they had utilized earlier than turning 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 additional 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 observe 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 interact the waiver provisions as set out under. This could apply for instance to people whose substantive visa ceased over 28 days earlier than they apply for the Companion visa.
“Compelling Causes” to waive Schedule 3 standards
Companion 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” are usually not outlined within the laws, and as such needs to be thought of on a case-by-case foundation. Within the matter of Waensila, the Full Federal Court docket decided that decision-makers should contemplate the entire visa applicant’s circumstances up till the time of choice (i.e. they don’t seem to be restricted solely to concerns on the time of utility).
Importantly, being in a accomplice/married relationship and the hardship suffered from separation if pressured to go away and apply outdoors Australia, wouldn’t of itself represent “compelling causes”. The Division’s view traditionally has been that such separation is widespread to Companion visa purposes (significantly 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 youngsters with a hyperlink to the visa applicant; or
- the Australian sponsor has a demonstrable psychological/bodily dependency on the visa applicant.
Underneath Departmental coverage, decision-makers are inspired to contemplate quite a lot of the applicant’s circumstances together with any historical past of non-compliance with visa situations, length of/causes behind any illegal durations, present household composition, and steps the applicant has taken to turn into lawful and so forth. The overarching view is that these provisions mustn’t present an unfair benefit to people who’ve didn’t adjust to their visa situations, intentionally manipulated their circumstances, and/or might apply for the offshore Companion visa.
Additional data
Hannan Tew Legal professionals have assisted quite a few people with sophisticated immigration circumstances in making use of for Companion 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 idea of “compelling causes” usually require cautious consideration and articulation.
Please be happy to contact us by electronic mail at [email protected] or telephone +61 3 9016 0484 when you’d like help. You may also subscribe to our publication for the most recent Australian immigration information straight to your inbox.
