Navigating “Compelling Reasons”: Can a Sponsor’s Ill Health Be ‘Compelling Enough’ for a Partner Visa Application?

The journey towards securing a Partner visa in Australia, a pathway to shared lives and futures, can be fraught with legal complexities. Particularly, the concept of “compelling reasons,” a critical legal threshold for applications lodged while not holding a substantive visa and outside stipulated timeframes. The case of Singh v Minister for Home Affairs highlights the stringent standards applied when someone did not hold a substantive visa and Sch.3 applied. 

Here are the key facts of the Singh v Minister for Home Affairs case:

• The applicant, Mr. Singh, applied for a Partner visa in Australia.
• Mr. Singh’s prior substantive visa had expired, and he applied for the Partner visa outside the 28-day window stipulated in Schedule 3 of the Migration Regulations.
• To be granted the visa, Mr. Singh was required to demonstrate “compelling reasons” for the waiver.
• Mr. Singh argued that his partner serious health conditions constituted “compelling reasons”. Mr. Singh’s wife suffered from several chronic conditions, including insulin-dependent diabetes and major depressive disorder.
• Mr. Singh provided medical evidence detailing Ms. Mafi’s conditions and the support she required.
• The Administrative Appeals Tribunal (AAT) refused Mr. Singh’s application, finding that the medical evidence did not demonstrate that Ms. Mafi’s conditions were such that she could not manage without Mr. Singh’s support.
• Subsequent court rulings revealed the high bar applicants must meet to succeed with such claims.

The Substantive Visa Requirement

What is a Substantive Visa?

Generally, to be eligible to apply for any visa with some exceptions such as a Partner visa while in Australia, you must hold a substantive visa. A substantive visa is any visa category other than a bridging visa. Bridging visas are temporary visas that allow a person to remain in Australia while their application for another visa is being processed. Holding a substantive visa at the time of application is crucial because it signifies that the applicant has been lawfully residing in Australia.

Schedule 3 of the Migration Regulations

If an applicant applies for a Partner visa without holding a substantive visa, they must meet stricter criteria. These stricter criteria are found in Schedule 3 of the Migration Regulations 1994 (Cth). 

The 28-Day Rule and “Compelling Reasons”

In cases where Schedule 3 applies, such as when the applicant does not hold a substantive visa, there may also be a requirement to meet the 28-day rule. The 28-day rule stipulates that the application for the Partner visa must be made within 28 days of the applicant’s last substantive visa expiring. If the application is made outside this 28-day period, the applicant must demonstrate “compelling reasons” for the delay.

In the Singh v Minister for Home Affairs case, the applicant did not hold a substantive visa at the time of his Partner visa application. This triggered the application of Schedule 3 criteria, and because he applied outside the 28-day period after his last substantive visa expired, he had to demonstrate “compelling reasons” for the delay.

Not holding the substantive visa at time of application places applicants in a precarious position, demanding the articulation of “compelling reasons” to justify the delay. This legal threshold is designed to ensure compliance with immigration regulations, and the onus is on the applicant to provide evidence that overrides this requirement.

The “Compelling Reasons” Threshold

Compelling reasons usually refer to exceptional circumstances. There is no legal definition of compelling reasons. The Singh v Minister for Home Affairs case clarifies that “compelling reasons” must extend beyond general hardship or emotional reliance. Health can be one of the compelling reasons may be considered for Sch.3 waiver. However,  the applicant must demonstrate that the sponsor’s health would significantly deteriorate without their presence, to the point where they are incapable of managing their conditions independently. 

When presenting medical evidence in support of a Partner visa application, it is crucial to understand that the focus is on the sponsor’s ability to manage their condition independently. Applicants must demonstrate the severity of the sponsor’s health conditions and their dependency on the applicant. You should provide comprehensive medical reports detailing the sponsor’s illnesses, and expert opinions highlighting the detrimental impact separation would have on the sponsor’s well-being.

The Administrative Appeals Tribunal (AAT) will assess the evidence, making a crucial distinction between a sponsor preferring support and necessitating it for survival or basic functionality. The Tribunal’s focus is not on the emotional or practical benefits of your support, but on whether the sponsor can manage their conditions independently. The AAT will acknowledge the sponsor’s health issues but also consider if those predate the relationship and are being managed with ongoing medical treatment. This approach underscores the stringent standards applied when evaluating medical evidence in visa applications.

Sch.3 threshold is quite high and “compelling reasons” in partner visa applications requires a through preparation and a deep understanding of the migration requirements. 

If you are in a situation where Sch.3 waiver is required, very first thing is to contact us by scheduling a consultation so that our Registered Migration Agent can review your situation and give you an honest advice. Given the complexities and potential for refusal, seeking professional guidance from a Registered Migration Agent is not just advisable, but often essential for a successful outcome.

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