IMMIGRATION FEATURE
A spouse with an expired visa
UNDER present legislation,
a spouse who lives with
an Australian citizen or an
Australian permanent resident
on a de-facto or marriage
relationship is allowed to file a
spouse application in Australia
even if they are illegal, either
because their visa has expired
or their visa application was
refused while in Australia.
Generally, Section 48 of the Migration
Act 1958 prevents a non-citizen with expired
visa or refused visa from filing another
substantive application while in Australia.
However, Schedule 3 of the Migration
Regulations 1994, permits an illegal person
to file a spouse application while in Australia
provided the Minister is satisfied that there
are factors beyond the applicant’s control
that prevented him or her from filing the
application on time and there are compelling
reasons that the visa will be processed in
Australia instead of overseas.
FACTORS BEYOND
APPLICANT’S CONTROL
IF, for example, the applicant failed to
file the spouse application on time because
of accident, it might be possible that the
www.kalatas.com.au
By ATTY. JESSIE ICAO
application will be granted even if filed out
of time.
I had a case where the Immigration
Department had granted the visa even if
the applicant had an expired visa as after
marriage, the sponsor was hospitalised,
thus preventing him from completing
the sponsorship form and collating all the
relevant documents which were required in
the spouse application.
COMPELLING REASONS
THE second leg of the exception is to
explain to the Department of Immigration
and Border Protection that while the visa
of the applicant had expired at the time of
filing the application, there were compelling
and compassionate reasons to waive the
Schedule 3 criteria.
There are cases where the Department
will exercise its discretion to waive the
Schedule 3 criteria on the following:
• If the applicant had an Australian
citizen child of the relationship or where the
applicant and the sponsor were in a long-
standing relationship for two years or longer
(as mentioned in the Explanatory Statement
of the partner visa provision).
• The hardship that could be caused by
a potential spouse visa applicant needing
to leave Australia in order to apply overseas
leaving the sponsor who required assistance
due to medical or psychological problems.
In the recent case of Singh v Minister for
Immigration and Anor [2017] FCCA 2461 (12
October 2017), the appellant was successful
in filing his spouse application on-shore in
spite of having an expired visa, as his sponsor
has drug and addiction problems and the
thought of leaving the sponsor increased the
sponsor’s level of stress.
A potential applicant must be aware that
compelling circumstances like medical or
psychological problems of the sponsor do
not necessarily exist at the time of filing the
application which was the previous rule, but
incidents that occurred after the filing of the
spouse application can be pleaded if they
constitute compelling and compassionate
reasons.
In the case of Waensila v Minister for
Immigration and Border Protection [2016]
FCCA 2276, the Court at [55] held…the
examples are expressed in a way which
suggests that the decision-maker can
take into account strongly compassionate
circumstances which exist when
consideration is given to whether or not
to exercise the waiver power, even if those
circumstances or “compelling reasons” post-
dated the time of application.
FURTHER SUGGESTION
THE waiver provision is complex and
it is strongly suggested that the potential
applicant must seriously identify the
problems that would constitute a ‘compelling’
reason, especially when the word ‘compelling’
is not defined by the legislation.
Any hardship by the parties if the
application is not processed on-shore must
be explained by the applicant with medical
or psychological reports attached to the
application and other evidence such as
statements from the applicant, sponsor and
community organisation which support
and confirm that the parties would suffer
hardship if the application was not processed
on-shore. n
JESSIE ICAO is a practising solicitor
in the State of New South Wales and
registered migration agent since 1993
(MARN 9367993). He is admitted
as a lawyer in the Philippines. The
information provided is of general
nature and cannot be relied in its
entirety. I suggest that you consult a
registered migration agent or refer to
the relevant law.
AK NewsMagazine, Vol 8 No 2 | NOVEMBER 2017
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