2005017 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), which was remitted to the Tribunal by the Federal Circuit Court. The applicant sought the visa after the cessation of his relationship with his former partner, the visa sponsor, and alleged he had been a victim of family violence. The core dispute revolved around whether the applicant met the Schedule 3 criteria for the visa, or if compelling reasons existed to waive these criteria, particularly in light of the alleged family violence.

The Tribunal was required to determine whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which mandates that an application be lodged within 28 days of the last substantive visa. If not, the Tribunal had to consider whether there were compelling reasons for not applying these criteria. Furthermore, the Tribunal needed to assess whether the applicant had suffered family violence within the meaning of the Migration Regulations 1994, and if such violence occurred during the existence of the partner relationship.

The Tribunal found that the applicant did not meet criterion 3001 as his application was lodged more than 28 days after his last substantive visa expired. However, it then considered the concept of "compelling reasons" for waiving the Schedule 3 criteria, noting that these reasons must be sufficiently convincing and powerful. The Tribunal also examined the applicant's claim of family violence, referencing Regulation 1.23 which outlines circumstances where family violence is deemed to have occurred, including through court-tested evidence such as injunctions, protection orders, or convictions. Crucially, the Tribunal noted that any violence must have occurred during the relationship. Despite the applicant's migration history, including previous unsuccessful applications for a Protection visa, the Tribunal accepted the applicant's evidence that the relationship was genuine and continuing at some point before its breakdown, and that he did not enter the relationship solely for migration purposes.

Ultimately, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant meets criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. This indicated that the Tribunal was satisfied that compelling reasons existed to waive the Schedule 3 criteria, likely due to the evidence of family violence, and that the applicant had established a basis for meeting the visa requirements on that ground.