# Partner Visa is about to get refused even though I am married and pregnant



## jeannette-nedoma (Jul 10, 2014)

Hi community,

When I applied for my Partner Visa last year, I was not a substantive visa holder. I just only had a Bridging Visa due to the fact that my woofing hosts did not confirm all my days with the Immigration Department. So the 2nd Year Visa application got cancelled (I took to the Australian Tribunal and it got cancelled again). I had my case officer on the phone the other day asking me to submit compelling reasons. He told me that he cannot take the pregnancy into consideration because I was not pregnant when I applied for the visa. So far I have talked to a solicitor once ( and look where his advice brought me) and did everything myself. The only compelling reason I can come up with is financial hardship. I am very exhausted as morning sickness, nausea and tiredness are taking its toll me on me. I cannot deal with people right now that are telling me I have to leave my husband and give birth to our kid somewhere else. Not sure if I should try to figure out more compelling reasons myself or get help from a migration agent? I am happy for any ideas. Thank you guys.


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## Mish (Jan 13, 2013)

I am sorry about your situation. Post in Ask Mark! and ask Mark. He is an awesome migration agent, of anyone can help Mark can.


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## Adam Grey (Nov 8, 2013)

Yeah get help from MARA registered migration agent, no easy answer to this as it needs an in depth look at your details.


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## Jeremy Hooper (Jul 10, 2014)

Hi Jeanette,

Unfortunately you have a problem. Being able to apply for a partner visa from a Bridging visa, after a refusal or from being unlawful used to be much easier if you could show compelling and compassionate grounds. That is definitely no longer the case. If you applied from a Bridging Visa and did not have substantive visa (any visa except a bridging visa) then you need meet Schedule 3 requirements and have compelling and compassionate reasons for the visa to be granted. Being pregnant and be subject to hardship if the you have to leave Australia are no longer deemed to be compelling and compassionate reasons. These days the only reasons that are considered are if something happened that was not your control, like being hit by a truck, or having a nasty disease that prevented you doing something about your status.

Your best course of action is to go offshore and apply again from offshore. I know that isn't what you want to do, but it is the best way to resolve you problem in the shortest possible time.

Regards


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## Lightbulb (Apr 28, 2014)

Hi Jeremy when did these changes come in effect and do they affect already submitted applications?


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## Jeremy Hooper (Jul 10, 2014)

The Changes came in July 7th. The notice we got from the Migration Institute was:




Partner Visas and Schedule 3: Updated policy


The MIA has received the following information from the Department:
Dear Migration Institute of Australia and Law Council of Australia
As of 1 July 2014, the Procedures Advice Manual (PAM) has been updated in relation to Schedule 3 of the Migration Regulations for Partner visas and can be located in the FLI (fast load instruction) info base. 
If you wish to access the PAM through Legend, there is a note at the top of the “old” instruction which states ‘revised version published as a FLI in the I subsite on 01/07/2014’. The updated policy can be viewed by clicking on the FLI hyperlink in the note, followed by the Sch2 Visa820 PJLv2 GTL (1).docx, which appears approximately half way down the page.
Kind regards
Family Policy Section
Department of Immigration and Border Protection


The extract from the Procedures Advice Manual is:

Clause 820.211(2)(d)(ii), the ‘compelling reasons’ provision, allows certain persons who are unlawful in Australia to regularise their status if compelling reasons exist.

The Migration Regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply Schedule 3 criteria 3001, 3003 and 3004. As such, officers should consider circumstances on a case by case basis.

In doing so, however, officers should be mindful that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status. The provisions are not intended to give, or be perceived to give, an unfair advantage to persons who:

fail to comply with their visa conditions or
deliberately manipulate their circumstances to give rise to compelling reasons or
an leave Australia and apply for aan leave Australia and apply for a Partner visa outside Australia.
An example of where the circumstances may not be compelling to waive the Schedule 3 requirements may be where an applicant has remained unlawful for a number of years, made little or no effort to regularise their status and claims compelling circumstances on the basis of a long term relationship with their sponsoring partner and/or hardship caused by separation if they were to apply outside Australia for the visa.

With the intent of the waiver provisions in mind, it is generally reasonable to expect that compelling reasons to exercise the waiver provision exist where an applicant’s circumstances happened beyond their control. That is, circumstances beyond the applicant’s control had led them to become unlawful and/or prevented them from regularising their status through means other than the Partner visa application for which they seek the waiver.

For example, in the scenario given earlier, it is reasonable to accept that compelling circumstances exist to waive the Schedule 3 criteria if, for reasons beyond the applicant’s control - such as severe illness or incapacity - the applicant was prevented from regularising their status in the years they had been unlawful.

As a general rule, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa, outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria. This is because a genuine relationship forms the basis of all Partner visa applications, and hardship caused by separation, whilst it differs in degree from one case to another, is common in the Partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.

Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. This not only ensures fairness and equity to other applicants and discourages deliberate non-compliance, but also preserves the integrity of the Partner visa program in general and the waiver provisions in specific.

Matters that officers should take into consideration when assessing whether the applicant’s circumstances may be considered compelling include but are not limited to:

any history of non-compliance by the applicant
the length of time the applicant has been unlawful
the reasons why the applicant became unlawful
the reasons why the applicant did not seek to regularise their status sooner
what steps, if any, the applicant has taken to regularise their status (other than applying for a Partner visa).


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## Lightbulb (Apr 28, 2014)

Thank you Jeremy for the information. If an application was submitted before the 1st of July does it still apply. I'm not sure how it works with these updated policies. Please let us know.
Thanks.


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## jeannette-nedoma (Jul 10, 2014)

*Thank you*

Thanks for your help, guys. It is really appreciated. We do not have enough savings to apply offshore. $5000 partner visa application fee with medical and all documents, the costs of me living in a different country, medical costs for me and our baby; it is impossible. Welcome to Australia where a Schedule 3 Criteria is worth more than a genuine marriage with a baby on the way. I won't give up yet. I will keep you updated. Thanks again!


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## 29pras (Jul 1, 2014)

Hi Jeanette me and my partner together from last 2.8 years and I was unlawful, I applied my 820/801 partner visa on June 6th do they consider my schedule 3 waiver criteria or do I need to apply offshore


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## Jeremy Hooper (Jul 10, 2014)

Lightbulb said:


> Hi Jeremy when did these changes come in effect and do they affect already submitted applications?





jeannette-nedoma said:


> Thanks for your help, guys. It is really appreciated. We do not have enough savings to apply offshore. $5000 partner visa application fee with medical and all documents, the costs of me living in a different country, medical costs for me and our baby; it is impossible. Welcome to Australia where a Schedule 3 Criteria is worth more than a genuine marriage with a baby on the way. I won't give up yet. I will keep you updated. Thanks again!


Hi Jeanette,

This has been looked at very recently. Unfortunately the Department thought that there were a lot of people abusing the Schedule 3 waiver conditions. We agents were very surprised by the new arrangement as well. The Migration Institute of Australia has a very good relationship with Assistant Minister Cash and we are following up on this issue.


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## Samanthayang (May 31, 2014)

What does the updated policy actually mean ? Is it getting better somehow or ..?? Because i cant understand that much so anyone please explain as my husband applied before july and he was on bridging visa back then. 
Thank you


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## Jeremy Hooper (Jul 10, 2014)

Samanthayang said:


> What does the updated policy actually mean ? Is it getting better somehow or ..?? Because i cant understand that much so anyone please explain as my husband applied before july and he was on bridging visa back then.
> Thank you


Hi,

I your husband was on a Bridging Visa, and he met the Schedule 3 requirements there it will not be a problem. If he did not meet the Schedule 3 requirements then he have have a problem with getting a Schedule 3 waiver.


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## Samanthayang (May 31, 2014)

Jeremy Hooper said:


> Hi,
> 
> I your husband was on a Bridging Visa, and he met the Schedule 3 requirements there it will not be a problem. If he did not meet the Schedule 3 requirements then he have have a problem with getting a Schedule 3 waiver.


So what are the schedule 3 requirements ? We just met for 1yr and we couldnt have a baby at the moment


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## Van777 (Jul 12, 2014)

Jeremy Hooper said:


> Hi Jeanette,
> 
> This has been looked at very recently. Unfortunately the Department thought that there were a lot of people abusing the Schedule 3 waiver conditions. We agents were very surprised by the new arrangement as well. The Migration Institute of Australia has a very good relationship with Assistant Minister Cash and we are following up on this issue.


Hi Jeremy

we are in the same situation as Jeanette, we were refused on Thursday because of this new policy, how can they do that? this policy didn't exist when we applied for the partner visa 8 month ago, they took our money, plus we paid the lawyers and now they refused us because of the new policy. Now they say only option we have is to go offshore and apply again, but what if they change the policy in six month for offshore applications? are we in the 16th century? this is the violation of basic human rights! are we able to take the case to the court? 
thanks!


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## 29pras (Jul 1, 2014)

Hello van777 very sorry for your situation, I applied on June 6th but haven't provided the schedule 3 argument yet.my lawyer said that there is meeting in canberra on 18th of this month.so don't give up.


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## nonick (Apr 5, 2014)

hi all I am in the same boat currently my case is in MRT but schedule 3 is implied on me too im just looking at all your comments and thinking is there any way to waive schedule 3


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## Valentine1981 (Sep 13, 2012)

Van777 said:


> we are in the same situation as Jeanette, we were refused on Thursday because of this new policy, how can they do that? this policy didn't exist when we applied for the partner visa 8 month ago


WOW!!! that is pretty atrocious.....changing the rules and applying them to you AFTER you lodged your application.....that doesn't seem right at all!! it would be like raising the cost of the visa and then demanding all the in process applications pay the difference


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## CCMS (Oct 10, 2013)

Jeremy Hooper said:


> The Changes came in July 7th. The notice we got from the Migration Institute was:
> 
> Partner Visas and Schedule 3: Updated policy
> 
> ...


Hi Jeremy, has it been confirmed that this will be applied retrospectively ? This seems rather harsh. I imagine the MRT will get very busy...


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## Jeremy Hooper (Jul 10, 2014)

*Schedule 3*



Van777 said:


> Hi Jeremy
> 
> we are in the same situation as Jeanette, we were refused on Thursday because of this new policy, how can they do that? this policy didn't exist when we applied for the partner visa 8 month ago, they took our money, plus we paid the lawyers and now they refused us because of the new policy. Now they say only option we have is to go offshore and apply again, but what if they change the policy in six month for offshore applications? are we in the 16th century? this is the violation of basic human rights! are we able to take the case to the court?
> thanks!


The regulation has been in place for sometime. It is just that what constitutes compelling and compassionate grounds has been tightened up. The reason for this is that too many people were abusing the system.


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## Van777 (Jul 12, 2014)

so does that mean that the regulation has been tightened up on 7th of July? if thats the case can we argue that with MRT? cause the regulation wasn't that tight when we submitted the applcation for partner visa, do you think we have any chance with MRT or we should think about going offshore ?

Thanks !


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## Maggie-May24 (Jul 24, 2011)

I would speak with a migration agent. I'm not sure how you'd argue in MRT against a regulation that was already in place.


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## jeannette-nedoma (Jul 10, 2014)

29pras said:


> Hi Jeanette me and my partner together from last 2.8 years and I was unlawful, I applied my 820/801 partner visa on June 6th do they consider my schedule 3 waiver criteria or do I need to apply offshore


They might. I never added compelling reasons to my application. Good luck to you.


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## jeannette-nedoma (Jul 10, 2014)

jeannette-nedoma said:


> Hi community,
> 
> When I applied for my Partner Visa last year, I was not a substantive visa holder. I just only had a Bridging Visa due to the fact that my woofing hosts did not confirm all my days with the Immigration Department. So the 2nd Year Visa application got cancelled (I took to the Australian Tribunal and it got cancelled again). I had my case officer on the phone the other day asking me to submit compelling reasons. He told me that he cannot take the pregnancy into consideration because I was not pregnant when I applied for the visa. So far I have talked to a solicitor once ( and look where his advice brought me) and did everything myself. The only compelling reason I can come up with is financial hardship. I am very exhausted as morning sickness, nausea and tiredness are taking its toll me on me. I cannot deal with people right now that are telling me I have to leave my husband and give birth to our kid somewhere else. Not sure if I should try to figure out more compelling reasons myself or get help from a migration agent? I am happy for any ideas. Thank you guys.


Here is an upgrade for you guys. Mark Northam is my migration agent now. We are about to hand in compelling reasons. Wish us luck!


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## Mish (Jan 13, 2013)

Good luck . Please let us know how you go. If anyone can do it Mark can


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## ericericpeter (Jun 3, 2014)

in the same boat. I lodged 820 on 28 may 14, 3 months later, they ask me to explain why I was not the holder of substantive visa when lodged application. 
I overstayed here and see a community status resolution service in immigration depart, I lodged my application under their assistance. Now immigration department changed the policy to schedule 3 and it is retrospectively. it is not fair at all. I think we should go together to fight our right.


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## aussiesteve (Mar 16, 2012)

ericericpeter said:


> in the same boat. I lodged 820 on 28 may 14, 3 months later, they ask me to explain why I was not the holder of substantive visa when lodged application.
> I overstayed here and see a community status resolution service in immigration depart, I lodged my application under their assistance. Now immigration department changed the policy to schedule 3 and it is retrospectively. it is not fair at all. I think we should go together to fight our right.


Hi
I would have thought someone who had been in the country unlawfully for 17 years would be hard pressed to argue the fairness of any decision, let alone talk about rights.
Most posters here have shifted heaven and earth and endured endless waits to get their visa legitimately!


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## Mish (Jan 13, 2013)

ericericpeter said:


> in the same boat. I lodged 820 on 28 may 14, 3 months later, they ask me to explain why I was not the holder of substantive visa when lodged application.
> I overstayed here and see a community status resolution service in immigration depart, I lodged my application under their assistance. Now immigration department changed the policy to schedule 3 and it is retrospectively. it is not fair at all. I think we should go together to fight our right.


The thing that people forget is a visa to Australia is not a "right" it is a privilege!


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## nonick (Apr 5, 2014)

Mish said:


> The thing that people forget is a visa to Australia is not a "right" it is a privilege!


Hi Mish doesnt want to offend you but everything in life is a privalage doesnt mean we dont have to fight for it


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## Mish (Jan 13, 2013)

nonick said:


> Hi Mish doesnt want to offend you but everything in life is a privalage doesnt mean we dont have to fight for it


Exactly! Immigration have said that it is not a right to get a visa it is a privilege. You have to be prepared to fight for what you want. For example someone who os married to an Aussie needs to fight for their visa to Australia just being married is not and should not be enough. Proof is the key.

Is it my right to work for x company? No ... it is a privilege. Is it my right to have a house ... no it is a privilege (I have to work for it).

Everything in life is a privilege you are not handed everything you need to work for it.

It is like us saying "You should give me a visa for x country because I am Australian". It is a privilege to get a visa to any country.


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## 29pras (Jul 1, 2014)

Please help me....I can see that you are familiar in the forum...I spent $16000 lawer fee they are even charging me $300 to $400 for the phone call I make to them to enquire about the application even though I paid all the fee in advance $10000.and now again asking $3000 for the professional fee ...I already paid $2000 professional fee....Please help


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## Becky26 (Jun 18, 2013)

Mish said:


> Exactly! Immigration have said that it is not a right to get a visa it is a privilege. You have to be prepared to fight for what you want. For example someone who os married to an Aussie needs to fight for their visa to Australia just being married is not and should not be enough. Proof is the key.
> 
> Is it my right to work for x company? No ... it is a privilege. Is it my right to have a house ... no it is a privilege (I have to work for it).
> 
> ...


Australia sure does makes the applicants work for the visa they've applied for, I guess that's why Australia is one of the most desired places where people want to live, people seem to like challenges.

Getting a visa for Australia is surely not a piece of cake. Good Luck to all waiting


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## Maggie-May24 (Jul 24, 2011)

29pras said:


> Please help me....I can see that you are familiar in the forum...I spent $16000 lawer fee they are even charging me $300 to $400 for the phone call I make to them to enquire about the application even though I paid all the fee in advance $10000.and now again asking $3000 for the professional fee ...I already paid $2000 professional fee....Please help


Many lawyers will have you pay more if you've already used up the retainer you paid them at the beginning. I know this was the case when I got divorced. You can ask your lawyer for a breakdown of the fees you've already paid vs. the work they've done so that you can keep an eye on the costs, but this is normal procedure.


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## ampk (Sep 21, 2013)

The Department say in short prolonged separation and financial costs among other things are not compelling reasons to waiver schedule 3. They say this is because it is normal for offshore partner visas applicants.

This normality is only due to the Departments poor planning numbers (not enough places allocated).

The reason there is a Family Stream visa system in the Departments system is to have a way for families to be together (not apart), so when these numbers are reduced or left the same level and there is already a back log – it is directly the planning numbers level that allows the Department to use this excuse not to accept the valid reason of separation and cost as compelling.

Senator Cash has explained the reason for growing waiting times for partner visas is there are more applicants than allocated numbers and the reason for the last two massive visa fee increases was to bring Australia’s fees in line with countries like Canada, UK and USA (my math at the time said they should have been reduced by 45% at that time – we pay more than all 3 combined). Seems they are not very good with numbers or peoples feelings.


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## Island Girl (Mar 31, 2014)

Dear Jeannette-Nedoma,
Could you please share some of the compelling reasons you and Mark Northam had written to the Department? They would certainly be helpful tips for those who are in the same boat. Thanks in advance.


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