ART Overturns Partner Visa Refusal After Seven-Year Legal Journey

Phillip Silver successfully appealed a partner visa refusal for our client. The Administrative Review Tribunal (ART) has set aside a long-standing refusal of a Subclass 820 Partner visa after finding compelling reasons to waive the Schedule 3 requirements, ending a complex legal process spanning almost seven years.

Background

The applicant lodged an onshore Partner visa application on 20 December 2017. At the time of application, he no longer held a substantive visa, meaning he was required to satisfy the Schedule 3 criteria under the Migration Regulations, including the requirement to lodge his application within 28 days of his last substantive visa.

His visitor visa had expired on 26 January 2015, almost three years before the Partner visa application was lodged. As a result, the Department refused the application on 8 July 2019, finding that the applicant did not satisfy Schedule 3 criterion 3001 and that there were no compelling reasons to waive the Schedule 3 requirements.

The applicant, represented by Phillip Silver, sought review in the Administrative Appeals Tribunal (AAT), which affirmed the refusal on 21 April 2021.

The matter then proceeded to the Federal Circuit and Family Court on appeal and the applicant was represented by Phillip Silver in the court proceedings. On 14 April 2025, the Court quashed the AAT’s decision and remitted the case for reconsideration. The Court found that the Tribunal had failed to properly consider significant evidence concerning the applicant’s role in supporting his partner and her adult son, who lives with schizophrenia and requires substantial daily care.

Following the Court’s decision, the newly established Administrative Review Tribunal received updated evidence in April 2026 and determined the matter without a further hearing because it was able to decide the case wholly in the applicant’s favour based on the legal and factual submissions made by the team at Phillip Silver and Associates Immigration lawyers and Registered Migration Agents.

Why the Tribunal Allowed the Appeal

The Tribunal accepted that the applicant did not meet Schedule 3 criterion 3001 because his visa application had not been lodged within the required 28-day period after his last substantive visa expired.

However, the Tribunal found there were compelling reasons to waive the Schedule 3 requirements.

Central to that finding was the extensive evidence demonstrating the applicant’s vital role within the family over many years. The Tribunal accepted that he had become the primary support person for his Australian citizen spouse, provided daily care for her adult son living with schizophrenia, acted as a father figure to the younger children, and made significant financial contributions to the household.

The Tribunal also placed considerable weight on the fact that the couple had maintained a genuine and continuing marital relationship for more than nine years. It described the relationship as long-standing by any measure and noted that long-term relationships were specifically contemplated by Parliament as circumstances in which a Schedule 3 waiver may be appropriate.

The Tribunal found that requiring the applicant to leave Australia to apply for a visa offshore would cause significant emotional, practical and financial hardship for the entire family, including jeopardising the care arrangements for the sponsor’s disabled son and creating financial instability.

In addition to waiving the Schedule 3 requirements, the Tribunal independently assessed the relationship evidence and found that the applicant met all relevant Partner visa relationship criteria, including the financial, household, social and commitment aspects required under the Migration Regulations.

Outcome

On 7 July 2026, the Administrative Review Tribunal set aside the Department’s refusal and remitted the application to the Minister for reconsideration, with binding findings that the applicant satisfied the key eligibility criteria for the Subclass 820 Partner visa, including the Schedule 3 waiver.

The decision highlights that although Schedule 3 requirements remain a significant hurdle for unlawful non-citizens applying onshore, they can be waived where compelling circumstances exist. It also reinforces the importance of properly considering all evidence relating to family hardship, caring responsibilities and the genuine nature of a long-term relationship before refusing an application.

Lastly it is important to have a competent team of Immigration Lawyers and Registered Migration Agents on your side.

 

Kind Regards,

Phillip Silver

Immigration Lawyer (Legal Practitioner Number 5511170)

Phillip Silver & Associates Lawyers and Registered Migration Agents