1702327 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa by an applicant born in India, who had been in Australia since 2008 and had a significant history of non-compliance with migration laws, including visa cancellations and periods of unlawful status. The applicant sought to establish a genuine de facto relationship with an Australian citizen sponsor. The core dispute revolved around whether the applicant met the criteria for the visa, specifically the existence of a genuine de facto relationship and whether compelling reasons existed to waive Schedule 3 criteria due to the applicant's prolonged unlawful status.

The Tribunal was required to determine two primary legal issues: first, whether the applicant was in a genuine and continuing de facto relationship with the sponsor at the time of the visa application and at the time of the decision, as defined by section 5CB of the Migration Act 1958 (Cth) and relevant regulations; and second, whether there were compelling reasons to waive the Schedule 3 criteria, which typically apply to applicants who do not hold a substantive visa at the time of application. The assessment of the de facto relationship involved considering financial aspects, the nature of the household, social aspects, and the nature of the commitment between the parties.

The Tribunal found that the evidence did not support a genuine de facto relationship. While the parties claimed to have met in 2014 and moved in together in 2015, the financial aspects of their relationship were not indicative of a genuine partnership, with no significant pooling of financial resources or joint ownership of assets. The Tribunal also noted that evidence of joint household finances appeared contrived for the visa application, and the social aspects of the relationship were limited. Furthermore, the applicant's extensive history of non-compliance with migration laws, including being unlawfully present in Australia for an extended period, demonstrated a limited commitment to a shared life. The Tribunal concluded that the sponsor's physical and mental illnesses, while acknowledged, were not of a degree that constituted compelling reasons to waive the Schedule 3 criteria.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a Partner (Temporary) (Class UK) visa, as the applicant failed to satisfy the relevant visa criteria.