1824867 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a decision that affirmed the refusal of their visa application. The core of the dispute revolved around whether the applicant met the criteria for the visa, particularly concerning the genuineness and continuation of their relationship with the sponsor, and whether Schedule 3 criteria applied.

The Tribunal was required to determine two primary issues. Firstly, whether the applicant was the sponsor's spouse at the time of the application, considering the definition of "spouse" under section 5F of the Migration Act 1958 (Cth). Secondly, the Tribunal had to ascertain whether there were compelling reasons to waive the Schedule 3 criteria, given that the applicant did not hold a substantive visa at the time of application.

The Tribunal applied the principles established in cases such as *Jayasinghe v MIMA* [2006] FCA 1700, which permit the consideration of evidence of events subsequent to the visa application if it logically tends to show the existence or non-existence of relevant facts at the time of application. The Tribunal found that the applicant and sponsor were validly married, shared a mutual commitment to a shared life, had a genuine and continuing relationship, and lived together, thus satisfying the definition of a spousal relationship under section 5F(2) of the Act, both at the time of application and at the time of the decision. The Tribunal also found that the sponsorship requirements were met. However, because the applicant held a Bridging E visa, which is not a substantive visa, the Schedule 3 criteria became relevant. The Tribunal concluded that the applicant did not meet the Schedule 3 criteria, but that compelling reasons existed for not applying them, including the fact that the parties were validly married and had an Australian-citizen child together.

Consequently, the Tribunal remitted the matter for reconsideration, finding that the decision under review should not have been affirmed.