Katherine & Simon – Schedule 3 Waiver Case Study

Clients

• Katherine (Philippines)
• Simon (Australia)

Situation

Simon, an Australian citizen, and his partner, Katherine, met during a professional conference in Sydney in 2019. Katherine, originally from the Philippines, was on a Temporary Work Visa Subclass 482 at the time. Their relationship blossomed quickly, and Katherine decided to stay in Australia to be with Simon. However, due to unforeseen circumstances, Katherine’s visa expired, she applied protection visa and was on Bridging Visa C.

Katherine applied for a Partner visa (subclass 820/801) but was faced with the challenge of Schedule 3, which requires visa applicants to hold a valid substantive visa at the time of application or to have held one within the past 28 days. Failure to meet this requirement typically results in the refusal of the partner visa unless compelling and compassionate reasons can justify a waiver.

Simon and Katherine were deeply worried about the potential separation and approached Emigrate Lawyers for assistance.

Solution

Emigrate Lawyers’ immigration lawyer assessed Simon and Katherine’s situation to identify compelling and compassionate circumstances to support their Schedule 3 waiver request.

Case Summary

• Katherine was previously granted a subclass 482 visa but did not apply for another substantive visa and her visa expired. When she found out her visa had expired, she immediately consulted with the Migration Agent. She was then wrongly advised by her migration agent to apply for a Protection Visa, and she was granted a Bridging Visa C associated with a Protection Visa.
• Katherine applied for a subclass 820/801 Partner visa with her de facto partner, Simon, with whom she had been in a committed relationship for 15 months.
• Departmental records showed Katherine had consistently adhered to visa conditions during her stay in Australia, demonstrating her compliance and future intention to comply with visa requirements.
• Katherine’s previous visa was not subject to a “no further stay” condition.

Compelling and Compassionate Circumstances

Professional Commitment and Employment:

• Katherine was employed in a critical sector as a biomedical engineer, contributing significantly to the healthcare system during the COVID-19 pandemic.
• Simon, an Australian citizen, was a senior manager in an aviation company, an industry still recovering from the pandemic’s effects. His skills were not easily transferable to Katherine’s home country due to the language barrier and the specialized nature of his job.

Personal and Family Considerations:

• Simon was diagnosed with a medical condition affecting his fertility, necessitating both physical and emotional support from Katherine. Their shared plans for starting a family were integral to their relationship.
• The public healthcare system in Katherine’s home country was inadequate, with long wait times and subpar facilities, which could significantly impact Simon’s health if he had to move there.
• Katherine’s higher earning capacity was crucial in supporting their household, including contributing to their mortgage and other financial commitments.
• Katherine and Simon regularly provided emotional support to Simon’s elderly mother, who relied on their visits to alleviate her depression and anxiety.

Safety and Well-being:

Simon could not relocate to the Philippines due to safety concerns, language barriers, and the inability to earn a living in a high-crime environment.

Katherine’s presence in Australia was essential for Simon’s mental well-being and stability, especially given his medical condition and professional obligations.

Outcome

Emigrate Lawyers submitted a robust and well-documented application highlighting the above compelling and compassionate reasons. The submission included detailed statements, medical reports, employment records, and personal affidavits from friends and family.

Visa Granted

The Department of Home Affairs found the presented factors sufficient to waive the Schedule 3 requirements. Katherine’s Partner visa (subclass 820) was granted, allowing her to remain in Australia with Simon. This case emphasizes the importance of a thorough and well-documented submission to demonstrate the compelling and compassionate reasons required for a Schedule 3 waiver.

Conclusion

At Emigrate Lawyers, we understand that each couple’s circumstances are unique and require personalized legal strategies. Our experience in handling complex partner visa matters ensures that our clients receive comprehensive support and guidance throughout the visa application process. If you need assistance with a Schedule 3 waiver or any other immigration matters, please contact us for professional advice and support.