CLIENT STORIES

Case Study

Compelling Reasons for Partner Visas - Case Study

Yunn Chen with Luciano and Andrew

Around 6 years ago our client Luciano and his partner approached us seeking advice on a partner visa application. At the time, Luciano didn’t hold a substantive visa.  This meant that in addition to providing evidence of a genuine and continuing relationship, they needed to demonstrate “compelling reasons” for the grant of the visa (in legal speak this involves requesting a waiver of the “Schedule 3” requirements). From our discussion, it was apparent that there were circumstances in Luciano’s case that could be considered compelling. We gave them an idea of the visa criteria and the process involved, noting that given the threshold of the Department of Home Affairs, there was a possibility of a refusal and that the entire process could take several years.

The Hurdles Involved

Although there are often compelling aspects to most partner visa applications, what’s considered compelling to the average person may not be deemed compelling enough to be granted a Partner visa. Compelling reasons can include being in a long-term de facto or married relationship, having an Australian citizen child together, or that there would be significant hardship to an Australian citizen or permanent resident should the applicant have to apply from outside of Australia.

In Luciano’s case, the application was initially refused by the Department of Home Affairs. We then assisted them with a review application to the Administrative Appeals Tribunal (‘AAT’). At the AAT, applications are considered afresh by a different decision-maker. We assisted Luciano and his partner with preparing further evidence and presenting this evidence at the hearing. The AAT again unfortunately deemed that the situation was not sufficiently compelling. We disagreed with this decision and were able to identify that there was a “legal error” or a mistake in the AAT decision. This led to a successful appeal of the decision to the Federal Circuit Court (‘FCC’).

Success at the FCC meant that Luciano and his partner were given a second AAT hearing – another opportunity to provide more evidence of a compelling reason. By this time more than three years had passed since the initial application, and many of Luciano and his partner’s circumstances had changed. The AAT heard the evidence available and was eventually satisfied that there were indeed sufficiently compelling reasons to “remit” the application to the Department of Home Affairs. Luciano was eventually granted a permanent partner visa.  

How We Help

Each partner visa case is unique and where Schedule 3 requirements need to be met, we ensure we are across all aspects of a person’s life to put forward the strongest possible evidence. What we did was to get a full idea of Luciano and his partner’s situation – their family, employment, health, finances, etc –  to understand what compelling reasons there were and how to provide evidence of this. Throughout the process, we also gave feedback and advice on not just the documents but the prospects of success at every turn. Luciano and his partner’s circumstances were ultimately deemed compelling because of the hardship that their Australian citizen family members faced, the difficulties returning to his home country, and the significant hardship to be separated as a couple.

Will This Be Your Journey?

It’s our hope that you won’t need to take such an arduous journey to residency, but if you do find yourself in this position, we hope this gives you an idea of the process involved and how we might be able to help. We’re passionate about helping navigate the complex migration laws, and know that it’s never just a visa that you’re working towards. With a good amount of perseverance, planning, and cautious optimism, it’s possible to get through a process like this successfully.

Luciano’s journey was documented in the SBS four-part series Who Gets To Stay In Australia, first aired in July 2020, available on SBS On Demand. He now owns and runs the successful Peruvian restaurant Ekeko in South Yarra.

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