Schedule 3 Criteria Waived at MRT Due to Emotional Dependence and Pregnancy Loss

Visa TypeSubclass 820

CategoryPartner Visa

Case Summary

An applicant who had overstayed his tourist visa and married an Australian citizen had his initial Subclass 820 application refused, but succeeded at the Migration Review Tribunal after compelling evidence of a genuine two-year relationship and the sponsor's severe emotional dependence following two miscarriages.

Background

Our client had originally come to Australia on a tourist visa, during which he met his sponsor. The couple eventually married and he sought to apply for a Subclass 820 Partner Visa, but had overstayed his original visa, giving rise to both a Schedule 3 issue and standard genuineness requirements. The initial application was refused on the basis that the decision-maker found no compelling or compassionate reasons for the Schedule 3 waiver, was not satisfied the relationship had lasted two years, and noted there were no children from the relationship. The couple sought our assistance for a review before the Migration Review Tribunal.

Challenges

Applicant had overstayed his tourist visa, requiring a compelling Schedule 3 waiver argument
Initial application refused — decision-maker not satisfied the relationship was of two years' duration
Absence of children from the relationship weakened the initial compelling circumstances case
Sponsor's severe emotional strain required detailed personal and supporting evidence to substantiate

How We Helped

In our MRT submission, we argued that the couple had been in a genuine relationship for two years, providing detailed evidence that although they maintained separate residences for nearly a year, they spent all their time together — staying together every night and jointly attending to household duties. We submitted evidence of the sponsor's financial support for the applicant throughout this period. We also presented compelling evidence of the sponsor's severe emotional state following two miscarriages, her deep reliance on the applicant for emotional support, and the couple's strong commitment to building their life together.

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Key Success Factors

Detailed evidence rebutting the decision-maker's finding that the relationship was not of two years' duration
Documentation of the couple's shared life and cohabitation despite technically separate residences
Compelling evidence of the sponsor's emotional dependence following the experience of pregnancy loss
Evidence of financial interdependence and mutual support throughout the relationship

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Outcome

The Tribunal accepted both the two-year relationship argument and the compelling circumstances arising from the sponsor's emotional state, and remitted the application to the Department with a direction that the Schedule 3 criteria be waived.

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