2002392 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), made by the applicant on 29 June 2018. The applicant claimed to be in a de facto relationship with the sponsor, an Australian citizen. The primary dispute revolved around whether the applicant and sponsor were genuinely in a de facto relationship at the time of the visa application, and whether compelling reasons existed to waive Schedule 3 criteria, as the application was made more than 28 days after the applicant's last substantive visa expired. The case was heard by Justine Clarke.

The court was required to determine three key issues. Firstly, whether the applicant and sponsor were in a de facto relationship for the purposes of clause 820.211(2)(a) at the time the visa application was lodged. Secondly, whether there were compelling reasons to waive the Schedule 3 criteria, as stipulated in clause 820.211(2)(d)(ii). Finally, the court needed to ascertain if the additional criteria for a de facto relationship, as outlined in regulation 2.03A, were met.

The Tribunal considered evidence both before and after the visa application date, applying the principle that subsequent events are relevant if they logically demonstrate the existence or non-existence of facts pertinent to the issue at hand, as per *Minister for Immigration and Ethnic Affairs v Pochi* (1980) 4 ALD 139. The Tribunal was satisfied that the applicant was not the holder of a Transit visa at the time of application, thus meeting clause 820.211(1)(a). The central question then became whether the applicant and sponsor were de facto partners under the Act. The Tribunal also considered clause 820.221, which requires the applicant to continue to meet the applicable subclause criteria at the time of the decision. The Tribunal confirmed the sponsor's Australian citizenship. The Tribunal concluded that the matter should be remitted for reconsideration.