ABC News has recently posted an article regarding Ali Choudhry, a gay man living in Brisbane who is now facing deportation. Mr Choudhry has been living in Brisbane for four years with his partner, Matthew Hynd. The pair lodged a de facto partner visa with the Australian Department of Immigration and Border Protection which, after two years, has been refused causing public outcry and anger at Australian immigration laws. Mr Choudhry is from Pakistan and fears he will be put in prison for being gay if he is sent back to his home country.
While Mr Choudhry states he cannot understand why their relationship is not considered a legitimate long-term partnership, the Immigration Department has said because Mr Choudhry did not hold a “substantive visa” at the time he applied, he did not satisfy the requirements of a partner visa. The issue the Department had was not with the legitimacy of the couple’s relationship or the fact that it is a gay partnership, the issue is that he failed to meet a basic criterion of a partner visa application, that is, he did not hold a substantive visa when he made the application.
This story has been widely publicised in the media and gained substantial community support – a petition to keep Ali Choudhry in Australia was given to Immigration Minister Scott Morrison with over 120,000 signatures.
The requirements of an onshore partner visa application are clear – the applicant must hold a substantive visa in order to be eligible. If the applicant doesn’t hold a substantive visa, they must come under schedule 3 criteria which requires the following:
- That the application be made within 28 days of the last day on which the applicant held a substantive visa or from the time notice is given, OR
- That the applicant satisfy several sub-criteria which include the following:
- the applicant is not (i.e. at time of application) the holder of a Substantive visa because of factors beyond their control’, and
- there are compelling reasons for granting the visa; and
- the applicant complied substantially with the conditions of their last visa (apart from any condition breached simply because the applicant ceased to hold a visa); and
- the applicant would have met all the criteria for grant of the visa in this application apart from the Schedule 3 criteria, on the last day they held a substantive visa.
If you don’t meet schedule three criterion then you need to apply for a schedule three waiver. A waiver can be granted for “compelling reasons”, including cases where there is a child from the relationship or where the financial burden would be significant. The period assessed is two years before the application was made.
Ali Choudhry did not meet these criteria, nor did he apply for the schedule 3 waiver and that is why the Department has refused his visa application. If he had of been on a substantive visa at the time he made his application and met all the other general criteria for that type of visa, it likely would have been granted.
This story highlights that, regardless of the sex of the applicants, all applications are assessed under the same requirements and if those requirements are not met, visa applications will be refused. While we feel sympathy for Mr Choudhry’s unfortunate situation, we believe this is a prime example of the dire consequences people suffer when they don’t seek professional advice before lodging a visa application. It is imperative that you ensure you are eligible for the visa you are applying for and that you do meet all of the necessary criteria as technical errors lead to applications being refused.
If you would like help preparing your visa application please contact FC Lawyers Migration Team. We will ensure that any visa application you lodge with the Department of Immigration meets the relevant criteria and has the best prospects of success.