Schedule 3 Waiver Secured at AAT After Student Visa Cancellation and Injury Left Applicant Unlawful

Visa TypeSubclass 820

CategoryPartner Visa

Case Summary

An applicant whose Subclass 572 Student Visa was automatically cancelled due to poor attendance (itself caused by financial hardship) became unlawful and then suffered a severe injury that prevented him from leaving Australia. His Subclass 820 Partner Visa was refused on Schedule 3 grounds but we successfully obtained an AAT remittal.

Background

Our client had come to Australia on a Subclass 572 Vocational Education Student Visa hoping to improve his employment prospects. Struggling financially with course fees and the cost of living, he took on extended part-time work and his college attendance declined, leading to automatic cancellation of his student visa. He pursued an MRT review which affirmed the cancellation. While in Australia he met his Australian citizen sponsor and began a genuine committed relationship. He then suffered a severe injury that prevented him from being able to leave the country, causing him to remain unlawful throughout this period. He lodged a Subclass 820 Partner Visa which the Department refused, finding no compelling reasons to waive the Schedule 3 requirement. We then appealed to the AAT.

Challenges

Student visa had been cancelled for unsatisfactory attendance following financial hardship
MRT had affirmed the visa cancellation, leaving the applicant with no substantive visa
Severe injury rendered the applicant physically unable to leave Australia, leading to extended unlawfulness
Financial circumstances prevented purchasing a ticket home even once the physical issues subsided

How We Helped

We conducted a forensic review of the applicant's immigration history to identify the strongest available arguments. We presented the AAT with compelling evidence that the circumstances leading to the applicant's unlawfulness — the financial hardship, the attendance-related cancellation, and the severe injury — were unforeseeable and outside his control. We also submitted that returning the applicant to his home country would deprive him of ongoing medical treatment for his injury, and that he lacked the financial means to support himself at the time of application.

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Key Success Factors

Forensic review of the full immigration history identifying all available compelling circumstances
Clear evidence of the severe injury as an unforeseeable circumstance preventing departure
Medical treatment access as an additional compelling factor supporting the Schedule 3 argument
Evidence of genuine financial inability to depart at the relevant time

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Outcome

The AAT accepted the compelling circumstances, remitted the application, and the Subclass 820 Partner Visa was ultimately granted.

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