1504492 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820) made by an applicant who had been in Australia unlawfully since 1997. The applicant sought to rely on compelling reasons to waive the Schedule 3 criteria, citing his marriage of three years to an Australian citizen, his wife's ongoing medical issues requiring his care, and their desire to start a family. The applicant's wife, a registered nurse, suffered from various health concerns, including a fear of surgery and stress related to her employment, which impacted her ability to conceive.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a Partner (Temporary) visa, specifically whether compelling reasons existed to waive the Schedule 3 requirements due to his period of unlawful status. The Tribunal was required to assess the applicant's claims regarding his wife's medical condition, his role as a carer, and the overall circumstances to determine if they constituted compelling reasons for a waiver under the Migration Regulations 1994.

The Tribunal affirmed the decision not to grant the visa. It found that while the applicant had presented evidence of his wife's medical issues and his care for her, these circumstances, when considered against the requirements of Schedule 3, did not establish compelling reasons for a waiver. The Tribunal noted the applicant's prolonged period of unlawful status and concluded that the presented reasons were not sufficient to overcome the Schedule 3 requirements. The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.