1905524 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant had lodged their application more than 28 days after their last substantive visa expired. The central dispute before the Tribunal was whether the applicant met the Schedule 3 criteria, and if not, whether there were compelling reasons for those criteria not to be applied. The applicant's visa and relationship history, including a valid marriage, were relevant, as was the applicant's claim of being pressured by their sponsor to lodge the application onshore, a subsequent breakdown of the marriage, ongoing intimidation by the sponsor and her parents, and the applicant's mental health and treatment in Australia, contrasted with the availability and quality of care in their home country.

The Tribunal was required to determine if the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, or if compelling circumstances existed to waive these criteria under clause 820.211(2)(d) of the Migration Regulations 1994. The applicant did not hold a substantive visa at the time of application, and the Tribunal had invited the applicant to provide information addressing the relevant Public Interest Criteria and the existence of compelling circumstances for not applying Schedule 3. A significant volume of evidence was submitted by the applicant, including statutory declarations, letters from support persons, medical reports, and information regarding mental health care in Romania.

The Tribunal considered the extensive evidence presented, including reports on the applicant's mental health and the availability of mental health services in Romania. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant be taken to meet criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, indicating that compelling reasons existed for not applying the Schedule 3 criteria in this instance. The application was remitted to the Minister for consideration of the remaining criteria for a Subclass 820 visa.