Compelling and Compassionate Circumstances in Australian Immigration

What Are Compelling and Compassionate Circumstances?

There is no single list of circumstances that automatically qualifies as compelling and compassionate.

Depending on the applicable provision, relevant circumstances may include serious or unexpected events that have substantially affected an applicant or their family.

Examples may include:

• Serious illness or significant medical circumstances
• Death or serious illness of an immediate family member
• Significant changes in family circumstances
• Circumstances affecting the welfare or best interests of a child
• Serious events that were outside the person's control
• Exceptional family or humanitarian circumstances
• Other significant circumstances specifically recognised by the applicable migration provision

The circumstances must be considered in the context of the particular legal requirement. Simply experiencing hardship or inconvenience does not necessarily mean that the legal test is satisfied.

When Can Compelling and Compassionate Circumstances Matter?

The concept can arise in different areas of Australian immigration law.

Waiver of Certain Visa Conditions

Some visa conditions may be waived in limited circumstances where the Migration Regulations allow a waiver.

For example, the regulations provide circumstances in which the Minister may waive certain conditions where compelling and compassionate circumstances have developed since the visa was granted, were outside the person's control and resulted in a major change in circumstances. Additional requirements may apply where a previous waiver request has been refused.

Schedule 3 Criteria

Certain applicants in Australia without a substantive visa may be subject to Schedule 3 criteria.

For some visas, the Minister may need to be satisfied that there are compelling reasons or circumstances before particular criteria can be waived or treated differently.

The applicable test varies according to the visa and the specific Schedule 3 criterion.

Re-entry Ban or Exclusion Period

A person who has an Australian immigration history that results in an exclusion period may, in certain circumstances, ask the Department to consider compelling and compassionate reasons for allowing them to return earlier.

For a temporary visa application, Home Affairs states that a written explanation of the compelling and compassionate reasons can be provided with the visa application. Permanent visa applications are assessed with the applicant's immigration history taken into account.

Other Migration Requirements

The wording can also appear in specific visa criteria and other provisions of the Migration Regulations.

For example, the regulations contain circumstances where compelling or compassionate circumstances may affect whether a particular requirement applies or whether a visa can be granted.

Therefore, it is important to identify the exact visa subclass and legal provision before determining whether compelling and compassionate circumstances can be relied upon.

What Evidence May Be Required?

A compelling and compassionate request should normally be supported by evidence that clearly explains:

• What has happened
• When the circumstances arose
• Why the circumstances were outside your control, where required
• How the circumstances have affected you or your family
• Why the circumstances are significant in the context of the relevant migration provision
• What outcome you are requesting
• Why the requested consideration is supported by the applicable legislation

Depending on the circumstances, supporting evidence may include:

• Medical reports and specialist letters
• Hospital records
• Death certificates
• Evidence concerning family circumstances
• Evidence relating to children and their welfare
• Police or official reports
• Employment or financial evidence
• Travel or immigration records
• Statutory declarations
• Other independent documentary evidence

The evidence required depends on the specific provision being considered.

Compelling Does Not Mean Simply Difficult

One of the most important points is that financial difficulty, inconvenience, disappointment or a preference to remain in Australia will not automatically amount to compelling and compassionate circumstances.

The Department must apply the relevant legislation and policy to the individual circumstances of the case.

A strong request should therefore focus on the specific legal test, rather than simply describing personal hardship.

Compelling and Compassionate vs Compelling Reasons

Australian migration legislation uses different wording in different circumstances.

You may encounter terms such as:

• Compelling and compassionate circumstances
• Compassionate and compelling circumstances
• Compelling reasons
• Compelling circumstances
• Circumstances beyond the applicant's control

These expressions should not automatically be treated as interchangeable. Their meaning and legal effect depend on the particular provision in which they appear.

How We Can Help

At The Visa and Education Services Pty Ltd, we can assess your circumstances and identify whether a compelling or compassionate consideration may be relevant to your Australian immigration matter.

Our assistance may include:

• Reviewing your immigration history
• Identifying the relevant visa or migration provision
• Assessing whether a waiver or special consideration may be available
• Reviewing supporting evidence
• Identifying gaps in your documentation
• Preparing a structured written submission
• Explaining the relevant migration requirements
• Assisting with the applicable visa or waiver process

Get Professional Migration Advice

Every case involving compelling and compassionate circumstances is highly dependent on its individual facts and the specific legal provision involved.

If you believe exceptional circumstances are affecting your Australian visa matter, obtain professional advice before relying on a waiver, exemption or discretionary provision.

Registered Migration Agent: Navneet Kaur (MARN 2318181)

Contact The Visa and Education Services Pty Ltd to discuss your circumstances and understand your available options.

Disclaimer: Australian immigration legislation and policy can change. Whether compelling and compassionate circumstances can be considered depends on the applicable legislation, visa subclass and individual circumstances. This information is general in nature and does not constitute legal or migration advice for a particular case.