Partner Visa and Schedule 3 Waiver Upheld at MRT Despite Restrictive Post-2014 Policy Guidance

Visa TypePartner Visa

CategoryPartner Visa

Case Summary

A partner visa application was refused after the applicant's previous migration agent failed to properly advise them or respond to the Department's requests. At the MRT, we secured a Schedule 3 waiver and visa grant by presenting compelling circumstances, successfully arguing the Tribunal was not bound by the restrictive 2014 policy guidance.

Background

Our client had applied for a partner visa on the basis of his relationship with an Australian citizen sponsor. The Department refused the application, finding there was insufficient evidence of a genuine spousal relationship. The client's previous migration agent had failed to advise him of the evidentiary requirements and had not responded to the Department's requests for further information. We were instructed to pursue an MRT appeal and prepared a comprehensive submission addressing both the relationship genuineness and the Schedule 3 criteria. A key legal issue arose because the revised departmental policy guidance of 1 July 2014 had narrowed the circumstances under which Schedule 3 could be waived.

Challenges

Previous migration agent had given inadequate advice and failed to respond to the Department's information requests
The application lacked the evidentiary foundation needed to establish a genuine spousal relationship
The revised July 2014 policy guidance on Schedule 3 waivers created a more restrictive framework to navigate
Multiple compelling circumstances needed to be argued simultaneously at the MRT

How We Helped

We prepared a detailed MRT submission addressing the background of the application, explaining the failures of the previous agent and presenting extensive new evidence across the financial, social, household, and commitment aspects of the relationship. We also made a compelling circumstances argument for the Schedule 3 waiver, addressing the emotional hardship on the sponsor, the couple's fertility challenges, the risk of harm to the applicant if returned to his home country, and financial hardship for both parties. We argued that while the new policy guidance was relevant, the Tribunal was not bound by it and was required to consider all evidence before it in making a holistic determination.

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Key Success Factors

Thorough presentation of the relationship evidence addressing the agent's earlier failures
Successful argument that the Tribunal was not bound by the 2014 policy guidance on Schedule 3
Multiple parallel compelling circumstances presented to reinforce the waiver argument
Evidence of risk of physical harm and financial hardship underpinning the Schedule 3 case

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Outcome

The Tribunal found the applicant and sponsor were in a genuine spousal relationship, accepted the compelling circumstances as sufficient to waive the Schedule 3 criteria, and remitted the application to the Department for reconsideration.

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