Schedule 3 Waiver Secured at AAT Based on Same-Sex Persecution and Community Contributions

Visa TypeSubclass 820

CategoryPartner Visa

Case Summary

An applicant who had become unlawful over three years — without his knowledge, after his prior agent failed to inform him that his student visa had been granted — had his Schedule 3 waiver refused by the Department. We succeeded at the AAT by grounding the argument in the risk of persecution the applicant would face as a same-sex person in his home country, and his contributions to Australia's academic community.

Background

Our client had instructed a prior migration agent to apply for a student visa. The visa was refused, but following an MRT review, it was remitted and granted. The prior agent failed to inform the client of the grant. The student visa eventually expired without the client's knowledge, leaving him unlawful for over three years. During this period he met his sponsor and entered into a genuine committed same-sex relationship. When he sought to obtain a partner visa, the Schedule 3 waiver was refused by the Department. We represented him at the AAT.

Challenges

Unlawfulness arose because the prior agent failed to notify the client of the student visa grant
Over three years of unintentional unlawfulness created a difficult immigration background
Department refused the Schedule 3 waiver despite the circumstances
Both the same-sex persecution risk and community contributions arguments needed to be developed and substantiated

How We Helped

We submitted to the AAT that the Schedule 3 waiver was justified because: (1) the applicant would face persecution in his home country for being in a same-sex relationship; and (2) the applicant had made substantial contributions to Australia's academic and professional community over the years of his presence. We also provided extensive evidence of the genuine de facto relationship and the couple's emotional and financial interdependence. The Department's refusal was overturned.

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Key Success Factors

Same-sex persecution risk as a compelling reason for the Schedule 3 waiver
Evidence of the applicant's long-standing contributions to the Australian academic and professional community
Comprehensive evidence of the genuine de facto relationship
Persuasive AAT submission rebutting the Department's refusal grounds

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Outcome

The AAT remitted the matter with a direction that the Schedule 3 criteria were met. The Subclass 820 Partner Visa was granted.

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