Schedule 3 Criteria and Singh

A note on Migration Regulations 1994 Schedule 3 Criteria and Singh v Minister for Home Affairs [2019] FCAFC 3 (Singh).

In summary, Schedule 3 criteria provides that a person must show compassionate and compelling circumstances to be granted partner visa lodged while the person was unlawful (i.e. with no visa) for more than 28 days after the expiry of their previous substantive visa.

The Department’s procedures advice manual says the following about what an applicant must do to show compassionate and compelling circumstances:

‘Compelling reasons may stem from compassionate factors or may arise, for example, from the applicant’s circumstances or the circumstances of another person.  

Circumstances beyond the applicant’s control may also constitute compelling reasons for granting the visa. For example, if the applicant became an illegal entrant, or without a substantive visa, due to a serious accident or illness, such might, depending on the circumstances.’

Singh made an application for partner visa more than 28 days after the expiry of his last substantive visa. The case officer deciding the visa application called on Singh to show compassionate and or compelling circumstances such that the Schedule 3 criteria could be waived and the visa granted. He submitted that his partner had chronic mental and other health issues, and that he was required to care for her as a result. However, the visa was refused and that decision was affirmed at the Tribunal. The Federal Circuit Court then dismissed Singh’s application for judicial review of the legal reasonableness of the Tribunals decision. Singh then applied to the Full Federal Court.

The Full Federal Court found that the Tribunal’s conclusion was not legally unreasonable. There was no evidence that Singh’s wife was unable to attend her medical appointments without Singh. Also, Singh’s wife was able to take medications herself and obtain ongoing treatment and medication.

The Court considered the facts of Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515. There the Court accepted that the Applicant’s sister had a history of psychiatric disturbance, had attempted suicide on two occasions and had experienced horrific abuse as a child. There was a doctor’s report stressing the importance of the sister’s relationship with the Application to her wellbeing. As such, the applicant adjudged to be uniquely important and beneficial to her condition.

This firm assisted a client who made a partner visa application more than 28 days after the expiry of a working holiday visa. The Department made an invitation to comment on Schedule 3 factors.

We demonstrated compelling circumstances that effected the interests of Australian citizens. The Applicant was a director and owner of a recruitment business, and at the time of the invitation to comment employed two Australian citizens. These circumstances were consistent with the department’s policy on compelling circumstances. The visa was granted.

Singh sets a high bar for what constitutes compassionate circumstances. A relationship with a citizen is certainly not enough. A relationship with a person who was sick before the relationship began, and was managing that illness, is probably not sufficient without demonstrating a unique reliance.

By Samuel Brouff with Iris law, Paralegal, contributing research and drafting