Partner Visa Compelling Reasons and Australian Citizen Children

Partner visa compelling reasons children arguments are among the most important tools available to an onshore partner visa applicant who was not holding a substantive visa when the Subclass 820 application was lodged. If you have an Australian citizen child, or a child with a strong link to Australia, that child may be the reason the Department of Home Affairs sets aside the Schedule 3 criteria. This article explains how partner visa compelling reasons children claims work, what the Department's own policy says, how the best interests of the child are weighed, and what evidence makes the difference.

The issue arises in a narrow but very common situation. A person in Australia overstays a visa, or lets a visa expire, and later applies for an onshore Subclass 820 partner visa. Because the person held no substantive visa at the time of application, the Migration Regulations 1994 add extra criteria from Schedule 3. Many applicants cannot meet those criteria. Their only path is to persuade the decision maker that there are compelling reasons not to apply them. For a family with young children, the children are often the strongest part of that case.

This is a single-factor article. It deals only with children as compelling reasons. For the full legal framework, including every other factor, read the Schedule 3 waivers service page and the overview of Schedule 3 criteria for partner visas. For the wider onshore and offshore picture, see the complete guide to partner visas in Australia.

What Are Partner Visa Compelling Reasons Children Arguments?

Partner visa compelling reasons children arguments are submissions, supported by evidence, that the presence and needs of a child provide compelling reasons for the Department or the Administrative Review Tribunal (ART) not to apply Schedule 3 criteria 3001, 3003 and 3004 to a Subclass 820 applicant. If the decision maker accepts the argument, the Schedule 3 barrier falls away and the application is assessed on its other criteria.

The legal source is subparagraph 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994. It provides that an applicant who is not the holder of a substantive visa must satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. The Regulations do not define compelling reasons. They do not list children as a ground. The relevance of children comes from Department policy, from case law, and from Australia's international obligations.

A partner visa compelling reasons children claim is therefore not a separate application. It is part of the Subclass 820 application itself. It is usually raised in a written submission lodged with the application, or in response to a request for information or a natural justice letter. It can also be raised for the first time at the ART on review.

It is important to separate two questions that are often confused. The first question is whether the relationship is genuine and continuing. The second question is whether Schedule 3 should be applied. A child of the relationship is strong evidence on the first question, as explained in our guide to preparing evidence of a genuine relationship. But partner visa compelling reasons children arguments go to the second question. They explain why this particular family should not be forced offshore because of a gap in the applicant's visa history.

When Does Schedule 3 Apply to a Subclass 820 Applicant?

Schedule 3 applies to a Subclass 820 applicant who did not hold a substantive visa at the time the application was made. A substantive visa is defined in subsection 5(1) of the Migration Act 1958 as a visa other than a bridging visa, a criminal justice visa or an enforcement visa. If you held a visitor, student, work or other substantive visa on the day you lodged, Schedule 3 does not apply, and partner visa compelling reasons children arguments are not needed for this purpose.

The most common people affected are:

• people who overstayed a visa and became unlawful non-citizens before lodging;
• people whose visa expired while they were waiting to lodge, even by a few days;
• people who held only a bridging visa when they lodged, for example after a refusal of an earlier application; and
• people whose visa was cancelled before they applied.

Holding a bridging visa does not help. Because a bridging visa is not a substantive visa, an applicant who lodged while holding only a bridging visa is treated the same way as an applicant who held no visa at all for Schedule 3 purposes. Our guide to bridging visas in Australia explains why that distinction matters so much.

Criterion 3001: The 28 Day Rule

Criterion 3001 requires the application to be made within 28 days after the applicant last held a substantive visa. Policy describes it as a time limit within which the application must be made. An applicant who lodges on day 29 or later does not satisfy it. Criterion 3001 does not stop the application being valid. It stops the visa being granted unless compelling reasons are found. For an applicant who lodged outside the 28 days, partner visa compelling reasons children arguments may be the main route to a grant.

Criteria 3003 and 3004: Circumstances Beyond Control

Criterion 3004 applies to a person who ceased to hold a substantive visa on or after 1 September 1994, or who entered Australia unlawfully on or after that date and has not since been granted a substantive visa. Criterion 3003 applies to a smaller historical group. Where they apply, the applicant must meet several requirements, including that the reasons for not holding a substantive visa were beyond the applicant's control, that there are compelling reasons for granting the visa, that the applicant substantially complied with the conditions of the last visa and any later bridging visa, and that the applicant would have been entitled to the visa had they applied immediately before becoming unlawful.

Most overstayers cannot meet all of those requirements. That is why the waiver in subparagraph 820.211(2)(d)(ii) is so important. If the decision maker is satisfied that compelling reasons exist for not applying criteria 3001, 3003 and 3004, none of them needs to be met. Our article on the Schedule 3 partner visa waiver sets out the general test. This article focuses on how children fit within it.

Other Barriers That a Child Does Not Remove

Partner visa compelling reasons children arguments only address Schedule 3. They do not cure other problems. A person subject to a no further stay condition such as 8503 generally cannot make a valid Subclass 820 application until the condition is waived. A person whose earlier visa application was refused may face the section 48 bar, although there is a partner exemption. The character requirements, the health requirement and the integrity public interest criterion 4020 still apply. If you have a refusal in your history, read our guide to a partner visa after visa refusal before you lodge.

What Does Department Policy Say About an Australian Citizen Child?

Department policy says that where there is an Australian citizen child with a demonstrable link to the applicant, a decision may be made to waive Schedule 3 criteria in the best interests of the child. That sentence appears in the Department's Procedural Instructions for the Subclass 820 visa (PAM3), in the section dealing with applicants who did not hold a substantive visa at the time of application. It is the policy foundation for every partner visa compelling reasons children submission.

The sentence appears directly after a statement of the general rule. Policy states that, as a general rule, the existence of a genuine spouse or de facto relationship, and the hardship of separation if the applicant had to leave and apply outside Australia, are not compelling reasons to avoid applying the Schedule 3 criteria. The reason given is that a genuine relationship forms the basis of all partner visa applications, and that hardship caused by separation is common in the partner visa caseload. The policy then sets out the child exception: however, where there is an Australian citizen child with a demonstrable link to the applicant, a waiver may be granted in the best interests of the child.

That structure tells you three things about partner visa compelling reasons children arguments:

• A child changes the analysis. Separation hardship between adults is generally not enough. Separation hardship that falls on an Australian citizen child is treated differently.
• The link must be demonstrable. Policy does not say any Australian citizen child will do. The child must have a real, provable connection with the applicant.
• The waiver is discretionary. The words are "may be made". A child opens the door to a waiver. It does not compel one.

The Factors Policy Tells Officers to Weigh

The same policy lists matters that officers should take into account when assessing whether an applicant's circumstances are compelling. The list is not exhaustive. It includes:

• any history of non-compliance with visa conditions by the applicant;
• the length of time the applicant has been an unlawful non-citizen in Australia;
• the reasons why the applicant became an unlawful non-citizen;
• the reasons why the applicant did not seek to become lawful sooner;
• current family composition, including any dependent children; and
• what steps, if any, the applicant has taken to become lawful, other than applying for the Subclass 820 and Subclass 801 visas.

"Current family composition, including any dependent children" is expressly listed. So a partner visa compelling reasons children argument is not an unusual or creative submission. It addresses a factor the Department itself tells officers to consider. But it is assessed alongside the other factors on the list, and an officer will look closely at the applicant's immigration history.

What Policy Says Against Waiver

Policy is equally clear about what the waiver is not for. It says the waiver provisions are intended only to allow people with genuinely compelling circumstances to regularise their status. They are not intended to give an unfair advantage to people who fail to comply with visa conditions, who deliberately manipulate their circumstances to give rise to compelling reasons, or who can leave Australia and apply for a partner visa outside Australia. Policy also states that the waiver should not be applied where it is reasonable to expect the applicant to leave Australia and apply offshore.

That last point is where partner visa compelling reasons children submissions do their real work. The question is often not whether the applicant has a child. It is whether it is reasonable to expect this applicant, with this child, to leave Australia and wait offshore for a Subclass 309 partner visa. A well-prepared submission answers that question with specific facts about the child.

Common Situations Where Partner Visa Compelling Reasons Children Arguments Arise

Partner visa compelling reasons children arguments arise most often where a parent's visa ended some time ago and the family has since grown in Australia. The scenarios below are hypothetical and illustrative only. They show the kinds of facts that commonly lead to this issue.

• The expired visitor visa. A person enters on a visitor visa, meets an Australian citizen, and stays after the visa ends. The couple later marry and have a child. By the time they apply, the applicant has been unlawful for some years. Our guide to moving from a tourist visa to a partner visa explains the pathway when the visitor visa is still current.
• The refused student. A former student's further visa application is refused, review is not pursued, and the person remains. A child is born to the person and an Australian permanent resident partner. The section 48 bar and Schedule 3 must both be analysed.
• The cancelled visa. A person's visa is cancelled and the person does not depart. The person later forms a relationship and the couple have a child. The visa cancellation history must be examined carefully before any partner application is lodged.
• The late lodgement. A couple prepare a partner application but lodge a few weeks after the applicant's visa expires. The applicant is outside the 28 days in criterion 3001. They have an infant who is an Australian citizen.

In each scenario the child is central, but the history is different. A partner visa compelling reasons children submission must be built around the specific facts, not a template. For a general overview of the onshore visa itself, see our Subclass 820 visa guide and the explanation of Subclass 820 and Subclass 801.

Is the Best Interests of the Child a Primary Consideration?

Yes. The best interests of the child are a primary consideration in partner visa compelling reasons children cases, but they are not the only consideration and they can be outweighed. That is the position in Department policy, and it reflects Article 3 of the Convention on the Rights of the Child, which states that in all actions concerning children, the best interests of the child shall be a primary consideration.

The Department's policy on the best interests of minor children explains how this works in Australian law. Australia is a signatory to the Convention on the Rights of the Child. However, international obligations such as Article 3 have no domestic legal force in Australia unless they are incorporated into Australian law. Migration legislation seeks to help Australia meet those obligations. The policy also notes that Australia's obligations under the Convention apply to children within Australia's territory or jurisdiction. An Australian citizen child living in Australia is squarely within that jurisdiction.

The same policy states plainly that although the best interests of a child are a primary consideration, they are not the only consideration. They can be outweighed by other primary considerations, such as the interests of the Australian community. That is why a partner visa compelling reasons children argument must be honest about the other side of the scale. If the applicant has a long period of unlawful stay, breaches of visa conditions or an unexplained failure to regularise, the submission must deal with those facts rather than ignore them.

Why Best Interests Matter Even Without a Best Interests Criterion

Some visas contain public interest criteria 4016 and 4018, which are specific best interests criteria for minors included in an application. Policy notes that those criteria generally do not apply to the main applicant for a partner visa, who is expected to be an adult. So the best interests of the child do not arise in a partner visa compelling reasons children case as a formal criterion that must be satisfied. They arise as a weighty consideration within the discretion in subparagraph 820.211(2)(d)(ii), and through the express policy statement about Australian citizen children.

In practice that means the decision maker is not ticking a box. The officer, or the ART member, is weighing the child's interests against the reasons for applying Schedule 3. The more concrete the evidence of the child's interests, the more weight it can carry.

What the Best Interests of a Child Usually Include

Policy in related areas describes the main principles of the Convention as keeping families together as far as possible and protecting children from harm. It also notes that, as a general rule, it is accepted that a child's best interests are to be with, or have access to, both parents, although the facts of each case must be assessed. Partner visa compelling reasons children submissions usually address:

• the child's need for the daily care and presence of both parents;
• the child's age and stage of development;
• the child's schooling, childcare and community ties in Australia;
• the child's health, including any medical, developmental or disability needs;
• the child's language, culture and ability to adapt to another country; and
• the practical and financial effect on the Australian parent of raising the child alone.

None of these factors is automatic. Each must be shown with evidence. A short sentence saying "it is in the best interests of our child for the family to remain together" adds very little. A detailed account of the child's actual life, supported by documents, can carry real weight.

Does a Child Born After Lodgement Count?

Yes. A child born after the Subclass 820 application was lodged can and must be considered, because compelling reasons are assessed at the time of decision, not only at the time of application. This is one of the most important points in any partner visa compelling reasons children case, and it is frequently misunderstood.

The source is the Full Federal Court decision in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32. The Department's own Schedule 3 policy records the effect of that decision. Compelling reasons not to apply criteria 3001, 3003 and 3004 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. Policy also states that decision makers must have regard to submissions about compelling reasons arising after the date of application which continue to exist at the time of decision.

The Subclass 820 policy repeats the point. It says a delegate must consider all of the visa applicant's circumstances, to the extent they are known up to the time of decision, and form a view about whether any one or more of them provide compelling reasons. A partner visa compelling reasons children claim based on a child born six months after lodgement is therefore legally relevant.

The Practical Consequence: Tell the Department

The Department can only consider what it knows. If a child is born while the application is being processed, the applicant should notify the Department of the change in circumstances and provide evidence. That usually means a Form 1022 notification of changes in circumstances, the child's birth certificate and, where relevant, evidence of the child's citizenship. It should also include an updated submission explaining why the birth gives rise to compelling reasons. A birth certificate uploaded without explanation is a missed opportunity.

The Manipulation Concern

Policy warns against applicants who deliberately manipulate their circumstances to give rise to compelling reasons. Some applicants worry that having a child during processing will be seen this way. In ordinary circumstances it should not be. Couples in genuine relationships have children. The concern in policy is directed at contrived conduct, not at family life. But it is another reason why partner visa compelling reasons children submissions should present the whole history candidly. A decision maker who sees an honest, consistent account is more likely to give weight to the child.

Stepchildren, Children From Previous Relationships and Permanent Resident Children

Partner visa compelling reasons children arguments are not limited to a biological child of the applicant and sponsor. The policy statement refers to an Australian citizen child with a demonstrable link to the applicant. It does not say the child must be the applicant's biological child. And because the decision maker must consider all of the applicant's circumstances, any child whose life would be seriously affected by the decision is relevant.

A Child of the Relationship

The strongest case is usually a child of the relationship between the applicant and the sponsor who is an Australian citizen. The link is obvious and documented, and the child's interest in being raised by both parents is easy to understand. Several of the Tribunal remittals discussed below involved a child of this kind.

A Stepchild

Where the applicant is a step-parent to the sponsor's child, the link must be demonstrated by evidence of the role the applicant actually plays. That may include daily care, school runs, medical appointments, financial support and the child's own attachment to the applicant. A step-parent who has lived with and cared for a child for years may have a very strong link. A step-parent who has only recently met the child will have a weaker one. Evidence of how responsibility for children is shared in the household is also relevant to the genuine relationship assessment.

The Applicant's Own Child From a Previous Relationship

An applicant may have a child from a previous relationship who lives in Australia. If that child is an Australian citizen or permanent resident, and the applicant has an active parenting role, the child may be relevant even though the child is not the sponsor's child. Parenting orders, care arrangements and the other parent's position can all matter. In some cases removal of the applicant would separate the child from a parent permanently, because the child cannot lawfully or practically be taken overseas.

A Permanent Resident or Other Child

Policy refers specifically to an Australian citizen child. A child who is an Australian permanent resident, or who holds another visa, is not mentioned in that sentence. However, the child is still part of the current family composition, which policy lists as a factor, and the decision maker must still consider all of the circumstances. A partner visa compelling reasons children submission for a permanent resident child should explain the child's settled status in Australia and why relocation or separation would harm the child. It should not overstate the policy.

Is a Child Born in Australia Always an Australian Citizen?

No. Being born in Australia does not, by itself, make a child an Australian citizen. In general terms, a child born in Australia is an Australian citizen by birth if at least one parent is an Australian citizen or permanent resident at the time of the birth. A child born overseas to an Australian citizen parent may be eligible for citizenship by descent, but that requires an application. Before relying on the policy about an Australian citizen child, confirm the child's actual status and obtain the evidence. If the child is not yet a citizen but is eligible, it may be important to apply for citizenship evidence before the decision is made.

How Separation or Relocation Affects the Child

A partner visa compelling reasons children argument usually turns on a simple question: what would actually happen to the child if Schedule 3 were applied and the visa refused? There are only two broad outcomes. Either the child stays in Australia and is separated from the applicant parent, or the child leaves Australia with that parent. The submission should explain, with evidence, why each outcome would seriously harm the child.

Separation From a Parent

If the applicant must leave Australia, the child may lose daily contact with a parent for a long and uncertain period. An offshore partner visa application must be processed while the applicant is outside Australia, and the child cannot know when the parent will return. For a baby or young child, the loss of a primary carer can affect attachment and development. For an older child, it can affect schooling, behaviour and emotional health. Evidence from treating doctors, psychologists, teachers and childcare educators can show this in concrete terms.

The policy treats separation hardship between adults as generally not compelling. A partner visa compelling reasons children submission must therefore focus on the child's separation, not only the couple's. The question is not whether the sponsor will miss the applicant. It is what the separation will do to the child.

Relocation of an Australian Child Overseas

The alternative is that the child leaves Australia with the applicant parent. For an Australian citizen child, that means leaving the country of citizenship, the other parent, school, extended family and health care. Relocation may be impossible where the child has a medical condition requiring treatment in Australia, or where the other parent does not consent or a parenting order prevents it. In some cases the child may have no right to live in the applicant's home country at all. Each of these facts strengthens a partner visa compelling reasons children argument, but only if it is proved.

The Australian Parent Left Behind

The effect on the sponsor is relevant where it flows through to the child. If the sponsor works full time and would have to give up work to care for the child alone, the child may suffer financially and emotionally. If the sponsor has a health condition that limits their ability to care for children, the child's welfare is directly affected. These facts belong in the submission because they explain the consequences for the child, not as a separate claim about adult hardship.

What the Tribunal Has Done in Partner Visa Compelling Reasons Children Cases

Published Tribunal decisions show that partner visa compelling reasons children arguments are regularly considered on review, and that the Tribunal has remitted Subclass 820 matters where a child was part of the compelling reasons claim. A remittal means the Tribunal sent the matter back to the Department to reconsider with a direction or finding. It is not a visa grant. The decisions below were made by the Administrative Appeals Tribunal (AAT), which was replaced by the ART on 14 October 2024. They are described only by the issues reported in each decision, and each case turned on its own facts.

• Bedi (Migration) [2020] AATA 5208 (Subclass 820): the reported issues were an application made more than 28 days after the last substantive visa was held, compelling reasons for not applying the criteria, and an Australian citizen child of the relationship.
• Fu (Migration) [2020] AATA 3922 (Subclass 820): the reported issues were that the applicant was not the holder of a substantive visa at the time of application, and an Australian citizen child from the relationship.
• Naidu (Migration) [2023] AATA 1830 (Subclass 820): the reported issues were a Federal Circuit and Family Court remittal, compelling reasons to waive the Schedule 3 criteria, a child born of the relationship, and a long-standing relationship.
• 1901805 (Migration) [2021] AATA 1139 (Subclass 820): the reported issues were a partner of an Australian citizen, compelling reasons to waive the Schedule 3 criteria, whether a person was prohibited from being a sponsoring partner, and a child of the relationship.
• Liu (Migration) [2019] AATA 5648 (Subclass 820): the reported issues were an application not made within the relevant time, waiver of the criterion, compelling reasons, and a child born to the relationship.
• 1716120 (Migration) [2019] AATA 1570 (Subclass 820): the reported issues were that the applicant did not hold a substantive visa at the time of application and did not satisfy criterion 3001, that the parties' relationship had ended, and an Australian citizen child.
• Wang (Migration) [2018] AATA 2629 (Subclass 820): the reported issues were Schedule 3 criteria, no substantive visa at the time of application, compelling reasons, and the applicant's care of the sponsor's children.

These decisions do not establish that a child guarantees a waiver. They show that the Tribunal treats children as a serious part of the compelling reasons assessment, including a child born of the relationship, an Australian citizen child, and a sponsor's children cared for by the applicant. They also show that partner visa compelling reasons children issues often arise together with other factors, such as the length of the relationship. For the review process itself, read what to expect after your visa is refused.

Partner Visa Compelling Reasons Children and the Genuine Relationship Test

A partner visa compelling reasons children argument only matters if the relationship itself is accepted. The applicant must still show a genuine and continuing relationship with the sponsor as a spouse or de facto partner, assessed across the financial aspects, the nature of the household, the social aspects and the nature of the commitment. A child of the relationship is strong evidence on several of those aspects, particularly the nature of the household and the nature of the commitment.

The two issues should still be argued separately. The relationship evidence proves the relationship is real. The partner visa compelling reasons children submission proves why Schedule 3 should not be applied. A decision maker who accepts the relationship may still refuse to waive Schedule 3. A decision maker who doubts the relationship will rarely reach the Schedule 3 question at all. Our overview of the Subclass 820 partner visa and the Subclass 820 visa explained describes the full set of criteria.

If the Relationship Has Ended

Sometimes the relationship ends while the application is pending, and there is a child. That situation raises different legal questions, including whether the applicant can continue under provisions for a child of the relationship or the family violence provisions in Division 1.5 of the Regulations. Our article on Subclass 820 relationship breakdown explains the options. Partner visa compelling reasons children arguments may still be relevant where Schedule 3 applies, as the reported issues in one of the decisions above show, but the analysis must start with whether the applicant can still meet the primary criteria.

Requests for Further Information

During processing the Department may ask for more information about the child, the relationship or the applicant's history. A section 56 request for more information should be answered fully and on time. It is also an opportunity to update the partner visa compelling reasons children evidence. An applicant who receives a natural justice letter proposing refusal on Schedule 3 grounds should treat it as the last chance to put the child's case before the Department decides.

Evidence for a Partner Visa Compelling Reasons Children Submission

The evidence for a partner visa compelling reasons children submission must prove three things: who the child is, the child's link with the applicant, and the harm the child would suffer if the applicant were forced to leave. Policy requires a demonstrable link. Assertions are not enough.

Identity and Status of the Child

• the child's full birth certificate, naming the parents;
• evidence of the child's Australian citizenship, such as an Australian passport or citizenship certificate, or evidence of the child's permanent residence or other visa;
• for a stepchild, evidence of the sponsor's relationship with the child and the household arrangements; and
• any parenting orders, parenting plans or court documents about the child.

The Applicant's Parenting Role

• school and childcare enrolment forms naming the applicant as a parent or emergency contact;
• letters from teachers, principals or childcare educators about the applicant's involvement;
• medical and dental records showing the applicant attending appointments;
• Medicare or health fund records listing the child with the family;
• photographs over time showing the applicant with the child in daily life; and
• evidence of the applicant's financial contribution to the child's needs.

The Child's Needs and the Impact of Separation

• reports from the child's general practitioner, paediatrician or specialists where the child has health or developmental needs;
• reports from psychologists or counsellors about the child's attachment and the likely effect of separation;
• school reports and learning support plans; and
• evidence of why relocation would not be possible or would seriously harm the child, such as the need for ongoing treatment in Australia.

Form 888 Statements and Personal Statements

Form 888 statements from Australian citizens or permanent residents who know the family can confirm the applicant's role in the child's life. Grandparents, family friends, neighbours and community members often give the most useful accounts because they see the family regularly. Our page of Form 888 examples shows what a useful statement contains.

The applicant and sponsor may also provide their own statements about the child and about the impact of a refusal. These are the client's own evidence. They should be accurate, specific and consistent with the documents. They are separate from the single relationship statement, which addresses the relationship. In a partner visa compelling reasons children case the impact evidence should describe the child's daily routine, who does what, and what would change.

Immigration History Evidence

The submission must also deal with the applicant's history. The firm obtains the visa history itself, from VEVO and Department and Tribunal records, so the client is not asked for documents they do not have. What the client can usually provide is the explanation: why the visa expired, why they did not regularise sooner, and what they did to try. A partner visa compelling reasons children submission that is silent on these points invites the decision maker to fill the gaps unfavourably. Our partner visa document checklist and the Subclass 820 evidence checklist cover the relationship evidence that sits alongside it.

When a Child Is Not Enough: Honest Limits

A child does not guarantee a Schedule 3 waiver. Partner visa compelling reasons children arguments can fail, and applicants should understand why before they lodge. The waiver is discretionary, and the best interests of the child can be outweighed.

The most common reasons a partner visa compelling reasons children claim fails are:

• Weak evidence of the link. The child exists, but the evidence does not show a real parenting role, particularly for stepchildren.
• Generic hardship. The submission describes the ordinary sadness of separation rather than specific harm to this child.
• A poor immigration history. A long unlawful stay, breaches of visa conditions or earlier misleading information can weigh heavily on the other side.
• No explanation for staying unlawful. Policy lists the reasons the applicant did not become lawful sooner as a factor. Silence on that point is damaging.
• Reasonable to apply offshore. If the child could travel with the applicant, or the separation would be short and manageable, the decision maker may find it reasonable to expect an offshore application.
• Other criteria not met. A waiver of Schedule 3 does not help if the relationship is not accepted as genuine, or if character, health or integrity criteria are not met.

An honest assessment at the start is essential. Some families have a strong partner visa compelling reasons children case. Others have a child but also a history that makes the waiver difficult, and may need a different strategy, including an offshore application. Our guide to why partner visas get refused covers the broader risks.

Partner Visa Compelling Reasons Children Arguments After a Refusal

If the Department has refused a Subclass 820 application because Schedule 3 was not waived, the refusal can generally be reviewed by the ART, and partner visa compelling reasons children evidence can be put to the Tribunal on review. The Tribunal makes its own decision on the evidence before it at the time of its decision. A child born after the Department's refusal, or evidence that was never provided to the Department, can be considered.

The review deadline is short and strictly applied. It runs from the date you are notified of the decision, and the Tribunal cannot extend it. The refusal letter states the deadline. You must also be in Australia when you apply for review of a Subclass 820 refusal. If you have just received a refusal, read our guide to partner visa refusal appeal options and obtain advice immediately. Our partner visa refusals service and general visa refusal lawyers page explain how review works.

At the ART, a partner visa compelling reasons children case is usually presented through a written submission, updated evidence about the child and oral evidence at the hearing. The applicant and sponsor may be asked detailed questions about the child's routine, care arrangements and the practical effect of separation. Preparation for those questions matters. If the Tribunal affirms the refusal and there is a legal error, judicial review may be available in limited circumstances, but it is not a rehearing of the facts.

If the matter is remitted, the Department reconsiders the application. The applicant should keep the evidence about the child current. A child's circumstances change quickly, and the decision maker on remittal will again assess the circumstances at the time of decision.

Before You Lodge: Planning a Partner Visa Compelling Reasons Children Case

The best time to build a partner visa compelling reasons children case is before the Subclass 820 application is lodged. Lodging without a submission means the Department may form a view on incomplete information, and may issue a request or refusal before the family has explained the child's position.

Planning should cover:

• whether Schedule 3 actually applies, by checking the visa history and the date the last substantive visa ended;
• whether any other barrier exists, such as condition 8503, section 48 or a previous cancellation;
• the child's citizenship status and the evidence of it;
• the applicant's real role in the child's life and how to prove it;
• the child's health, schooling and any specific needs;
• the honest explanation of the immigration history; and
• whether an onshore application with a waiver request is the right strategy, compared with an offshore application.

Applicants who are already unlawful also need to think about their status while the application is pending. A valid Subclass 820 application will usually give rise to a bridging visa, but the bridging visa does not cure Schedule 3. See our guides to Bridging visa A, Bridging visa B for travel and Subclass 820 work rights on a bridging visa. Processing can take a long time, as explained in our article on Subclass 820 processing times, so the evidence about the child should be refreshed as the child grows. Our article on how long the onshore Subclass 820 takes gives practical context.

Getting Legal Help With a Partner Visa Compelling Reasons Children Case

A partner visa compelling reasons children case combines immigration history, family law facts, child welfare evidence and a discretionary legal test. It is one of the areas where legal advice before lodgement makes the most practical difference. Our guide to choosing a partner visa lawyer and the wider article on partner visa lawyers explain what to look for.

If an application has already been lodged without a submission, it is usually not too late. The firm is often engaged after lodgement, as explained in our article on hiring an immigration lawyer after visa lodgement. The representative is appointed using Form 956, and further evidence and a submission can then be provided. If you already have a representative and want an independent view, an immigration lawyer second opinion can test whether the partner visa compelling reasons children evidence is strong enough.

If a decision is imminent, or a refusal has arrived, read about urgent immigration lawyer advice and how a visa appeal lawyer works on review. Our article on the immigration lawyer consultation explains what to prepare, and the guide to an immigration lawyer for a partner visa sets out the role in more detail. Clients in Sydney and Melbourne can also start with our immigration lawyers in Sydney and immigration lawyers in Melbourne.

Applicants should also keep their personal documents in order. Character information may be requested on a Form 80, and the application and later documents are managed through the applicant's ImmiAccount. If refusal reasons are already known, our analysis of Subclass 820 visa refusals shows where applications most often fail.

How My Migration Lawyers Helps With Partner Visa Compelling Reasons Children Matters

My Migration Lawyers prepares partner visa compelling reasons children submissions for onshore Subclass 820 applicants who did not hold a substantive visa when they lodged, or who are about to lodge in that position. The firm deals with complex cases, acts in many Schedule 3 matters involving children, and is capable of handling the difficult histories that often come with them.

On a matter of this type, the firm usually works through the following steps:

• History check. The firm obtains the applicant's visa history from VEVO and Department and Tribunal records, and confirms whether Schedule 3 applies and whether any other barrier exists.
• Child assessment. The firm confirms each child's citizenship or visa status and identifies the evidence of the applicant's link with the child.
• Strategy. The firm advises honestly on whether a partner visa compelling reasons children argument is strong enough to support an onshore application, or whether another pathway is safer.
• Evidence plan. The firm gives the family a clear list of the documents they can realistically obtain, including school, medical and childcare records and Form 888 statements.
• Statements. The applicant and sponsor give their own account of the child's life and the impact of separation. The firm puts that account into the form the law requires, and the clients review and correct it.
• Legal submission. The firm prepares a written submission addressing subparagraph 820.211(2)(d)(ii), the Department policy on Australian citizen children, the best interests of the child, the timing principle in Waensila, and the immigration history.
• Updates and review. The firm notifies the Department of new circumstances, such as a birth, and acts on ART review if the application is refused.

All matters are supervised by Weiwei Zhang, Principal Lawyer. You can read more about My Migration Lawyers and our work as partner visa lawyers. Consultations are held by video, so families anywhere in Australia can obtain advice, including clients of our partner visa lawyers in Sydney, Melbourne, Brisbane, Perth, Adelaide, Canberra, Hobart, the Gold Coast and Parramatta.

If your partner visa depends on your child and on a Schedule 3 waiver, obtain advice before you lodge, or as soon as you receive a refusal. A partner visa compelling reasons children case is won on evidence and preparation.

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You can also call 1300 040 300.