2007149 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by Mr A. The application was refused by a delegate of the Minister, and subsequently reviewed by the Tribunal. The primary issues before the Tribunal were whether Mr A was the de facto partner of Ms B at the time of his application, whether he met the Schedule 3 requirements, and whether those requirements should be waived. A further consideration was whether Ms B, the proposed sponsor, had the capacity to sign the sponsorship forms, given an administration order had been made in respect of her due to mental illness.

The Tribunal was required to determine if Ms B had the capacity to undertake the sponsorship obligations at the time of Mr A's visa application. The Tribunal noted that the definition of "sponsor" in the Regulations requires an undertaking to be made, not an assessment of the sponsor's financial capacity at that point. Ms B had signed the sponsorship form, indicating an undertaking to assist Mr A financially and in relation to accommodation. The Tribunal also had to consider whether Mr A met the Schedule 3 requirements, which relate to applicants who have ceased to hold a substantive visa more than 28 days prior to lodging their application. If these requirements were not met, the Tribunal had to assess whether there were compelling reasons to waive them.

The Tribunal reasoned that the sponsorship undertaking was made by Ms B when she signed the sponsorship form, irrespective of her subsequent administration order. The Tribunal found that Mr A had been in a de facto relationship with Ms B for approximately nine years. Given the long-term nature of this genuine relationship, and Mr A's circumstances of having been unlawful for an extended period and facing homelessness, the Tribunal concluded that there were compelling reasons to waive the Schedule 3 requirements.

Consequently, the Tribunal remitted the matter for reconsideration, with directions to grant the visa if the other criteria were met.