Schedule 3 Waiver Accepted for Subclass 457 Applicant Not on Substantive Visa at Lodgement

Visa TypeSubclass 457

CategoryEmployer Sponsored

Case Summary

After a Subclass 457 application was initially remitted by the MRT for reconsideration, the Department refused the application a second time because the applicant was not on a substantive visa at the time of lodgement. We submitted a Schedule 3 argument establishing that this occurred through circumstances beyond the applicant's control, and secured the visa grant.

Background

Our client had previously achieved a successful MRT outcome, with his Subclass 457 visa application remitted to the Department for a second assessment. Upon reconsideration, the Department refused the application again on the basis that the applicant was not on a substantive visa at the time of lodgement, which is a criterion for the Subclass 457. We were engaged to submit a Schedule 3 argument to address this issue.

Challenges

The applicant was not on a substantive visa at the time of lodgement, creating a refusal ground
Schedule 3 arguments must meet a high threshold of being compelling and compassionate
The applicant had already been through an MRT process, making further failure particularly impactful
Demonstrating that the lack of a substantive visa arose from circumstances beyond the applicant's control

How We Helped

We prepared a Schedule 3 argument demonstrating that the applicant had become a person without a substantive visa due to factors that were outside his control. We supported this with evidence that the sponsoring employer viewed the applicant as an essential employee, reinforcing the business case for the visa. The Schedule 3 criteria require compelling and compassionate justification, and we ensured both elements were clearly addressed.

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Key Success Factors

Clear argument that the absence of a substantive visa at lodgement was due to factors beyond the applicant's control
Employer evidence confirming the applicant's essential role in the business
Thorough and precise preparation of the Schedule 3 submission given the high threshold required
Understanding that a failed Schedule 3 argument would prevent further arguments from being made

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Outcome

The Department accepted the Schedule 3 argument and the applicant was granted the Subclass 457 visa.

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