Compelling spouse visa policy rejected

On 11 March 2016, the Full Federal Court handed down an important decision on policy for partner visa applications in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (11 March 2016). Waensila, which adopts the High Court’s reasoning in Berenguel v MIAC [2010] HCA 8, broadens the circumstances to be taken into account when considering a Schedule 3 waiver for a partner visa application to include circumstances which arise after the time of application.

Where an applicant applies for an onshore partner visa (sc 820 and 801 visas) they must hold a substantive visa or have held a substantive visa in the last 28 days. If they do not then they must show that there are “compelling reasons” for waiver of this requirement (often referred to as the Schedule 3 requirement).

The Departmental policy has previously been that it will only take into account circumstances which existed at or before the time of application in considering whether there are compelling reasons for the Schedule 3 waiver. However Waensila found that this policy was incorrect and circumstances which arise after the lodgement of the visa application (eg pregnancy, ill health) should also be taken into account. We will have to wait and see whether the Minister successfully appeals the decision in Waensila but in the meantime it is a very positive decision for people who are unlawful or hold a bridging visa and want to lodge a partner visa application.

The full decision is available at: http://www.austlii.edu.au/au/cases