1923098 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (subclass 820) by an applicant who had been in Australia unlawfully for a significant period. The applicant had arrived in July 2008 and his tourist visa expired in October 2008. He subsequently applied for a protection visa, which was refused, and this decision was upheld on review by the Refugee Review Tribunal and the Federal Court. The applicant had been granted various bridging visas during this period, and his last bridging visa expired in August 2014, after which he again became an unlawful non-citizen. The Tribunal was required to determine whether the applicant met the Schedule 3 criteria for the visa application, and if not, whether there were compelling reasons to waive these requirements.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 820.211(2)(d)(ii) of the Migration Regulations 1994, which necessitates meeting Schedule 3 criteria. If these criteria were not met, the Tribunal had to consider if compelling reasons existed to waive them. The Tribunal also examined the applicant's credibility, particularly in light of his statements regarding his intention to leave Australia when applying for a bridging visa on departure grounds, and his claim of fear of returning to Vietnam.

The Tribunal found that the applicant did not satisfy the Schedule 3 criteria. It reasoned that the applicant's genuine relationship, the sponsor's health, and the potential hardship to the applicant if forced to apply offshore were not, in themselves, compelling reasons to waive the Schedule 3 requirements. Furthermore, the Tribunal noted inconsistencies and limited evidence regarding the financial, household, and social aspects of the relationship, as well as the nature of the commitment. Crucially, the Tribunal expressed concern about the applicant's credibility due to his admission of making a "temporary promise" to return to Vietnam on a visa application, which he later stated he had no intention of fulfilling, preferring to remain in Australia even if it meant imprisonment.

The Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa, concluding that the applicant did not meet the criteria for its grant.