1620529 (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 820. The applicant did not hold a substantive visa at the time of application, leading to the potential application of Schedule 3 criteria. The core dispute revolved around whether these Schedule 3 criteria were met, and if not, whether there were compelling reasons to waive them. The applicant also needed to satisfy the criteria for a genuine and continuing de facto relationship with the sponsor.

The legal issues before the court were twofold: first, whether the applicant met the criteria set out in Schedule 3 of the Migration Regulations 1994, and second, if those criteria were not met, whether there were compelling reasons for the Minister to exercise discretion and waive them. Additionally, the court was required to determine if the applicant was, at the time of the visa application and at the time of the decision, the de facto partner of the sponsor, as defined by the Act and Regulations.

The court found that the applicant did not satisfy criterion 3001 of Schedule 3, as the visa application was lodged more than 28 days after the relevant day on which the applicant last held a substantive visa. Consequently, it was unnecessary to consider criteria 3003 and 3004. The court then examined the meaning of "compelling reasons" for waiving Schedule 3 criteria, referencing established case law that requires reasons to be sufficiently convincing and circumstances to be powerful enough to lead a decision-maker to make a positive finding in favour of waiver. The court also considered the evidence regarding the de facto relationship, including financial and social aspects, household matters, and the nature of the commitment between the applicant and sponsor, noting the birth of a third child and the couple's presentation as a family unit.

Ultimately, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa with a direction that the applicant met the requirements of clauses 820.211(2) and 820.221(1) of Schedule 2 to the Regulations, and regulation 2.03A. The Tribunal was satisfied that the applicant and sponsor were in a genuine and continuing de facto relationship, satisfying the criteria for the visa.