Examples of compelling and compassionate circumstances

Examples of compelling and compassionate circumstances

“Compelling and compassionate circumstances” come up in several parts of Australian migration law, including waivers of the Schedule 3 criteria for onshore applicants without a substantive visa, waivers of the No Further Stay condition, PIC 4020 and re-entry ban waivers, and requests for ministerial intervention. Each has its own legal test, so the same facts can succeed in one area and fail in another. The information below focuses on Schedule 3.

Applicant’s circumstances must have been beyond their control

Criteria 3003(c) and 3004(c) require the decision-maker to be satisfied that the applicant became an illegal entrant or a person without a substantive visa because of factors beyond the applicant’s control.

Two requirements must be satisfied:

there must be factors that caused the applicant to become an illegal entrant or a person without a substantive visa and
those factors must have been beyond the applicant’s control.

The element of causation is important. It is not sufficient that factors beyond the control of the applicant existed. Those factors must have caused the applicant to become an illegal entrant or a person without a substantive visa.

Meaning of ‘beyond the applicant’s control’

The phrase ‘factors beyond the applicant’s control’ is to be given its natural meaning and considered against all relevant circumstances of the applicant.

The test is whether the applicant became a person to whom 3003 or 3004 applies because of circumstances that were “external” to the applicant and over which they had no control.

Some circumstances may clearly meet the test, for example where a serious accident or illness renders the applicant incapable of making an application.

Other situations will be more difficult to assess, for example where an applicant claims to have:

been unaware that they were an illegal entrant or without a substantive visa or
misunderstood the period during which their visa was in effect or
misunderstood the conditions attached to their visa.

Claims by an applicant that they were unaware they were an illegal entrant, or without a substantive visa, should be considered on a case by case basis. The mere fact that an applicant makes such a claim would not, on its own, constitute a circumstance beyond their control. In some instances, an applicant’s lack of awareness may, however, be attributable to a circumstance over which the applicant had no control, for example, if the applicant’s visa was not correctly evidenced and the visa ceased on a date earlier than the date specified on the visa label.

Similarly, claimed misunderstandings relating to when a visa is in effect or to the conditions attached to a visa should be considered on a case by case basis. It is reasonable to assume that a visa holder is aware of the period covered by the visa and the conditions attached to the visa unless there is evidence to the contrary. An example of when there would be evidence to the contrary is when file records indicate that incorrect advice was given by the department.

Invalid applications

Applicants who lodge applications that are found to be invalid sometimes become unlawful between when they lodge the substantive visa application and when it is actioned by the department. They will usually be unaware that they have become unlawful until later notified of the invalidity of the application.

Taking into account individual circumstances, it may be reasonable to consider that these applicants became unlawful due to factors beyond their control. In such cases, decision makers should be satisfied that the applicant acted expeditiously with the department when they first became aware of their unlawful status.

Practical examples

Every case depends on its own facts, but circumstances that have been put forward as compelling reasons to waive Schedule 3 include:

an Australian citizen or permanent resident child of the relationship, and the effect on the child of the parent having to leave Australia;
serious illness or disability of the Australian sponsor or another Australian family member who depends on the applicant for care;
a high risk pregnancy or a medical condition that makes travel unsafe;
war, natural disaster or a serious risk of harm in the applicant’s home country, making it unreasonable to expect them to apply from there;
an invalid application or incorrect advice that caused the applicant to become unlawful without realising it.

The existence of a genuine relationship, or the ordinary hardship of being separated while an offshore application is processed, is not usually enough on its own. Decision makers also look at how long you have been unlawful, why, and what you did to fix your status. Provide detailed evidence, such as medical reports, statutory declarations from the sponsor and family members, and school or care records for children.

If your application is refused, you can usually apply to the Administrative Review Tribunal (ART) for review. The ART can decide for itself whether compelling reasons exist at the time of its decision.

Compelling reasons to grant the visa must exist

Schedule 3 comprises five separate criteria: 3001 to 3005 (discussed separately further below).

One or more of the five criteria apply to most (not all) substantive visa subclasses that can be granted while the applicant is in Australia.

The Schedule 3 criteria that apply to any specific subclass are prescribed in Schedule 2 to the Regulations as a criterion to be satisfied at time of application.

However, if waiver of a Schedule 3 criterion is permitted in Schedule 2 criteria for the visa applied for, ‘compelling reasons’ are not limited to circumstances in existence at the time of application. Circumstances constituting compelling reasons can arise at any time, up until the time of decision, and s65 delegates must have regard to submissions by the visa applicant as to any compelling reasons occurring after the date of application, which may continue to exist at the time of decision.

The criteria apply only to persons who do not hold a substantive visa at the time they apply for a further visa.

Examples of compelling and compassionate circumstances

The Full Federal Court has held that in considering waiver of Schedule 3 criteria (namely 3001, 3003 and 3004) – if waiver is permitted in Schedule 2 criteria for the visa applied – ‘compelling reasons’ not to apply the Schedule 3 criteria can include circumstances arising up to and including the time of decision. They are not limited to circumstances in existence at the time of application. Circumstances constituting compelling reasons can arise at any time, up until the time of decision and s65 delegates must have regard to submissions by the visa applicant as to any compelling reasons occurring after the date of application, which may continue to exist at the time of decision.

Refer to Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (11 March 2016).

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