services | visa3i

Complex Matters

Some of the more complex Australian visa matters we can assist with include: Character Issues, Health Waivers, Schedule 3 & Notices of Intention to Consider Cancellation, Refusal or Sanction.

Character Issues

One of the foundational requirements of Australian immigration law is the ‘character test’. The ‘character test’ is a prism through which the Department of Home Affairs assesses whether a visa applicant's criminal history will prevent grant of a visa, or if a visa holder can continue to hold one. 

Section 501 of the Migration Act 1989 defines the ‘character test’. The legislation (and Ministerial Directions) is quite broad in application; however, some examples of why an applicant (or visa holder) may not pass the character test can include:

  • They have a substantial criminal record
  • They pose a threat or danger to the Australian community
  • The Minister believes the person is not of good character due to their past of present conduct.

Contact us if you are faced with a potential refusal or cancellation based on character grounds.

Health Waivers

Another fundamental requirement for a visa grant is the health requirement. For most visas, an applicant should be:

  • Free from a disease or condition, in which they would required health care or community services; and
  • The provision of such care or services should not result in significant cost to the Australian community or prejudice the access of an Australian citizen/ permanent resident to such care or services.

Otherwise,  if the applicant cannot meet the health requirement, they may be eligible for a ‘health waiver’ in some instances. In these cases the Department considers a broader range of factors if an applicant's health condition is serious enough.

Contact us if you’d like assistance with a health waiver or if you are unsure whether you will meet the health requirement for grant of a visa.

Schedule 3

Partner visa applicants in Australia that hold a bridging visa or are unlawful non-citizens, must contend with ‘Schedule 3’ criteria. In essence, the Schedule 3 requirement is that the applicant:

  • does not hold a substantive visa due to factors beyond the applicant’s control
  • there are compelling reasons for the grant of the visa
  • the applicant has complied substantially with their last visa or permit, including any subsequent bridging visas

Contact us if you’d like to deal with a potential Schedule 3 issue, or would like to know if you fit the requirements.

Notice of Intention to Consider Cancellation, Refusal or Sanction

The issuance of any of the following notices is a serious step taken by the Department. It may indicate a range of issues, for example:

  • A Standard Business Sponsor has breached it's approval obligations, such as failure to keep records of payment of employees, or other breaches in workplace law.
  • The Department has become aware that an applicant for a visa, or a visa holder, has a 'substantial criminal record' that has not been declared.

Responding to such notices needs a careful and effective response. Contact us if you have received a notice and need assistance.

Case Study

A Barrage of Complexity

A client approached us with a range of issues concerning a Partner visa application. He had been in Australia unlawfully for several years, married an Australian partner and together had a child. The visa he used on first entry to Australia had a ‘no further stay’ condition attached to it – meaning he would under most circumstances not be able to apply for a further visa while in Australia. His Australian partner had developed a medical condition preventing her from working and caring for their child.

To top everything off, he was recently diagnosed with a medical condition that may have jeopardised his ability to meet the health requirement. We set out with a steady approach in dealing with all the competing issues. We dealt with the ‘no further stay’ condition by applying for a waiver based on the Australian partner’s medical condition. We advised the applicant to undergo pre-visa application medical testing with a medical expert familiar with Australian visa health requirements.

Satisfied that the visa applicant’s medical condition would not likely cause an issue for the application; we set about ensuring we addressed the Schedule 3 criteria. We submitted that in the best interest of the Australian child, it was imperative for her father to remain in Australia.

Despite all of the complexity, happily, the visa was granted – a fantastic result.

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