Migration Regulations: Item 820.211(2)(d) of Schedule 2

Sub: This is to confirm that Mr Hayat confers with the requirements of Item 820.211(2)(d) of Schedule 2 according to the Migration Regulations 1994

Sir/Madam,

It is my duty to inform you that, I have been allowed to represent my client who has applied for a subclass 820 with his sponsor Mr. Adam.  With this application you will find a duly filled form 956 attached.

• These two individuals are in a relationship and classify as a genuine couple. The main applicant of the partner visa is Mr. Hayat. The requirement of Visa dictates that the individual satisfy the requirements of Sch 2 criteria of the Migration regulations 1994 for the Partner visa.
• My client satisfies all of the requirements which are relevant to the Sch 2 criteria in regards to the grand of Subclass 820 visa. In this instance I would like to specifically address the item 820.211 2(d) which concerns the migration regulation of 1994 which my client needs to satisfy as he is not yet a holder of substantive Visa.
• In order to qualify for item 820.211 2(d) the client needs to be in coherence with clause 3001, 3003 and 3004 of the sch 3 of the migration regulations of 1994 or have reasons which hold weightage that the requirements may be ignored.
• The submission would have 2 parts, in part 1 of the submission the requirements for sch 3 criteria 3001, 3003, 3004, would be addressed and in part 2 I would explain why my client has compelling reasons that sch3 criteria should not be applied to my client.

Part 1: The Sch3 criteria 3001 3003 and 3004

Sch 3 criteria 3001 of Migration regulations 1994

1. My client’s visitor visa expired on March-5^th-2019. To satisfy criterion expressed in 3001 my client should have applied for a visa application within 28 days of expiration of his current visa but he did not due to compelling reasons which messed with his ability to do so.

Sch3 criteria  3003 of Migration regulations 1994

• The clause 3003 does not apply to my client as he was not an illegal entrant of 31 august 1994 and did not have substantive visa after the first of September 1994.

Sch3 criteria 3004 of Migration regulations 1994

• To satisfy the sch3 cirteria of 3004, my client would have to satisfy all of the following:

• Client does not hold substantive visa due to reasons which were beyond his control.
• My client has complied to each requirement of the previous visas he applied for. Substative, visitor, bridging visa E.
• My client intends to satisfy all of the requirements of partner visa as well, it is evident from his history that he hasn’t been held up for non-compliance.
• My client would have satisfied the conditions for a partner visa if he had applied on the day his substantive visa expired i.e. 05 march 2019.

Part 2: Compelling reasons for not applying the Sch 3 criteria[1]

Factors beyond his control[2]:

• My client is a citizen of Afghanistan, his family continued to live life in Afghanistan when he first came to Australia on 6^th December 2018. He visited Melbourne to attend a engineering conference, the said letter has been attached with the application.
• While my client was in Australia, his father was killed and mother and sister went missing the newsclipping with translation has been attached with the application.
• Due to these reasons my client went into severe depression the detailed medical expenses, visits and details are attached in the application. My client lived with his sponsor for the most part of February and March 2019.
• Since my client was in no mental shape to apply for the visa, as expressed by his medical conditions, he satisfies the factors were beyond my clients control.

Length of period for which Hayat was unlawful and steps taken to resolve the status[3]:

• My client went into depression and Mr Adam was involved in providing the necessary care for him. In such conditions they both missed that my clients visa had already expired.
• My client became aware of his unlawful status as his health improved and he applied for a waiver of 8503 condition on his visitor visa, dated 26^th April 2019. It was than my client was granted BVE.
• My client remained unlawful for only a couple of weeks, the total duration of his unlawful status was from 06/03/2019 to 25/04/2019.

Unable to apply for a visa from overseas[4]:

The medical condition of my client does not allow him to apply visa from overseas as he has to visit his counsellor and clinical psychologist as mentioned before, the concerned documents were attached with the application.

Under his conditions, with dead parents and missing sisters the only person to provide for him is his sponsor Mr. Adam.

Mr Hayat cannot return to Afghanistan due to his sexual preference and his involvement in working with the government. This would make him a target in his previous country.

Visa compliance[5]:

1. My client does not have any history which tells us that there is any non compliance regarding the visa conditions. Mr Hayat satisfies the requirement due to the clause 820.6 which is required for partner visa that no visa conditions are imposed on the said visa.

Hence my client has compelling reasons as to why they did not apply for criteria 3001, 3003 and 3004. Thus, satisfying all requirements of item 820.211 2(d).

[1] PAM3:Migration regulations Schedules [Sch2Visa820] – Partner –Other unlawful non-citizens

[2] PAM3:Migration regulations Schedules [Sch2Visa820] – Partner –Other unlawful non-citizens

[3] PAM3:Migration regulations Schedules [Sch2Visa820] – Partner –Other unlawful non-citizens

[4] PAM3:Migration regulations Schedules [Sch2Visa820] – Partner –Other unlawful non-citizens

[5] PAM3:Migration regulations Schedules [Sch2Visa820] – Partner –Other unlawful non-citizens