Introduction: Partner Visa Case
This case study examines a complex immigration matter involving a Turkish national, Ms A, and her Australian partner, Mr B. Ms A’s application for a Partner (Temporary) (subclass 820) and Partner (Residence) (subclass 801) visa was approved despite her having been unlawful in Australia for nearly four years. The following details the strategies and compelling arguments presented in the legal submission, ultimately leading to a successful outcome.
Kris, the founder and principal lawyer at Kris Ahn Lawyers and an Accredited Specialist Immigration Lawyer, presents this detailed case study on recent immigration cases.
820 Partner Visa and 801 Partner Visa
Background: Partner Visa Case
Ms A entered Australia on a substantive visa that expired on October 10, 2019. Due to miscommunication with her education providers and agents, she unintentionally became an unlawful non-citizen. The onset of the COVID-19 pandemic further complicated her situation, preventing her from rectifying her visa status due to international travel restrictions and lockdowns.
Ms. A has been in a committed relationship with Mr. B, an Australian citizen, for over three years. The couple lived together through the pandemic, with Ms A providing significant emotional support to Mr B during this challenging period.
Legal Challenges and Considerations
The primary challenge in Ms A’s case was meeting the Schedule 3 criteria, which apply to individuals who have become unlawful non-citizens. To avoid the stringent requirements of Schedule 3, we needed to demonstrate compelling reasons for waiving these criteria, thereby allowing Ms A to remain in Australia. At the same time, her partner’s visa application was processed.
Arguments for Schedule 3 Waiver
- Pandemic-Related Hardships:
- The COVID-19 pandemic created extraordinary circumstances that prevented Ms A from returning to Turkey or securing a new visa promptly. This situation was beyond her control and contributed significantly to her unlawful status.
- Emotional and Mental Health Support:
- During the prolonged lockdowns, Ms A’s presence was crucial for Mr B’s mental health. Studies indicated a significant increase in mental health issues among Australians during the pandemic, and Mr B’s verbal testimony underscored the lifesaving support provided by Ms A.
- Established Life and Career in Australia:
- Both Ms A and Mr B had established careers in the fitness industry in Australia. Relocating to Turkey would disrupt their professional lives and impose significant hardship, particularly given Mr. B’s recent graduation from Firefighting College and his new position with Fire and Rescue NSW.
- Legal Precedents and Departmental Policies:
- Reference was made to relevant case law and departmental policies supporting the waiver of Schedule 3 criteria in compelling circumstances. Critical cases cited included Waensila v MIBP, Babicci v Minister for Immigration and Multicultural and Indigenous Affairs, and Plaintiff M64/2015 v Minister for Immigration and Border Protection. These precedents emphasise the need for decision-makers to consider compelling reasons that drive an irresistible conclusion to grant a waiver.
Outcome: Partner Visa Case
Ms A’s partner visa application was lodged on April 4, 2023, and despite the complexities involved, her visa was granted in July 2024. This success was mainly due to the comprehensive and compelling legal submission that effectively highlighted the unique hardships and extraordinary circumstances faced by the applicant.
Conclusion
This case demonstrates the importance of a well-prepared legal argument that addresses the regulatory requirements and the human aspects of immigration law. By presenting a thorough and compassionate case, we secured a positive outcome for Ms A and her family, allowing them to remain together in Australia and continue their lives without disruption.
Disclaimer: Not Legal Advice
The information provided in this blog post/article is for general informational purposes only. It does not constitute legal advice or create a representative-client relationship. While we strive to provide accurate and up-to-date information, the content may not reflect the most current legal developments or specific circumstances.
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Australian immigration law is arguably one of the most complex laws in Australia. Seek professional legal advice tailored to your individual needs before making any decisions based on the content of this post.
