Partner Visa Schedule 3 Waiver Granted for Pregnant Applicant Who Received Incorrect Migration Advice

Visa TypeSubclass 820/801

CategoryPartner Visa

Case Summary

A Working Holiday visa holder who became pregnant fell into an unlawful position after following incorrect advice from a previous migration agent, and subsequently lodged her partner visa beyond the 28-day window. We successfully argued compelling circumstances to waive the Schedule 3 criteria.

Background

The applicant arrived in Australia on a Working Holiday visa purely to experience the country, but during her stay met and entered into a committed relationship with the sponsor. As her visa approached expiry she was pregnant with their first child. A previous migration agent advised the couple that they needed to wait for a registered relationship certificate before lodging a partner visa application, believing the 12-month cohabitation requirement could otherwise not be met. Acting on that advice, they delayed lodging the partner visa and instead applied for a Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa. By the time the couple realised the previous advice may have been incorrect and lodged a Subclass 820 partner visa, the applicant was on a Bridging Visa — and the application was lodged beyond the 28-day period after the expiry of her last substantive visa. This meant she could not satisfy Schedule 3 criterion 3001.

Challenges

Partner visa lodged outside the 28-day post-cessation window due to incorrect advice from a previous migration agent
Applicant was on a Bridging Visa at time of lodgement, meaning Schedule 3 criteria 3001 was not met
Pregnant at time of application, with medical issues that made potential repatriation a health risk
Sponsor had a child from a previous relationship and a long-established business that would be severely damaged if he were forced to leave Australia

How We Helped

We prepared a comprehensive submission arguing compelling reasons to waive the Schedule 3 criteria. We set out the longstanding nature of the relationship since 2013, the applicant's pregnancy and associated medical complications, the significant emotional and practical hardship a forced departure would cause, and the impact on the applicant's established support network during her first pregnancy. We also addressed the sponsor's situation — the potential destruction of his business and the effect on his daughter from a previous relationship — to demonstrate that the hardship affected both applicant and sponsor.

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Key Success Factors

Compelling reasons submission demonstrating the applicant's significant medical and emotional vulnerability during pregnancy
Evidence of the long-standing relationship and the couple's deep reliance on each other
Detailed account of the sponsor's business interests and the irreversible damage forced departure would cause
Addressing the impact on the sponsor's existing child and the family unit as a whole
Decision-ready application ensuring minimal processing time after lodgement

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Outcome

We were instructed in September and secured the visa grant by November — a two-month turnaround. The Schedule 3 criteria 3001 was waived on the basis of compelling circumstances, and the Subclass 820 partner visa was granted.

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