ABBOUD (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), which had been remitted to the Federal Court. The applicant sought to have the decision reviewed, with the core of the dispute revolving around whether there was a compelling reason for the applicant not to meet the Schedule 3 criteria, given she was not the holder of a substantive visa at the time of her application. The applicant's circumstances included having two children, a genuine and committed spousal relationship with her sponsor, who provided financial support, and the couple sharing household responsibilities and providing emotional comfort and support.

The Tribunal was required to determine whether the applicant had established a compelling reason for the waiver of Schedule 3 criteria. This involved assessing the genuineness and commitment of the spousal relationship, the applicant's personal circumstances, including the presence of her children, and the overall context of her application in light of her failure to hold a substantive visa at the time of lodgement. The Tribunal also had to consider any credibility issues that may have arisen during the assessment of the application.

In its reasoning, the Tribunal found that the applicant had demonstrated a genuine and committed spousal relationship, supported by evidence of financial assistance from the sponsor, shared household responsibilities, and mutual emotional support. Despite the applicant not holding a substantive visa at the time of application, the Tribunal concluded that these factors, particularly in conjunction with the presence of her children, constituted a compelling reason to waive the Schedule 3 criteria. Consequently, the Tribunal remitted the application for the visa to the Minister for further consideration, with a direction that the applicant met specific criteria, namely cl.820.211 and cl.820.221 of Schedule 2 to the Regulations.