1710836 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse). The applicant, a national of India, had lodged his application out of time and remained in Australia unlawfully after his substantive visa ceased. The sponsor was an Australian citizen. The Tribunal affirmed the decision not to grant the visa.

The primary legal issues before the Tribunal were whether there were compelling reasons to waive the Schedule 3 criteria, given the applicant's unlawful status, and whether the applicant met the other criteria for the grant of a Subclass 820 visa, including the requirement for a genuine and continuing relationship. The Tribunal also considered the evidence relating to the sponsor's pregnancy and the applicant's alleged financial reliance on the sponsor.

The Tribunal found that the evidence provided did not establish compelling reasons to waive the Schedule 3 criteria. Specifically, the Tribunal was not satisfied that the sponsor's claimed mental health issues, or the applicant's alleged financial support during the pregnancy, constituted such compelling reasons. Furthermore, the Tribunal noted the limited evidence regarding the sponsor's pregnancy, including a lack of clear medical or third-party opinion as to the applicant's paternity, and the applicant's refusal to provide DNA evidence. The Tribunal also found that the applicant did not meet the criteria for a genuine and continuing relationship.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, Subclass 820.