Dzolev (Migration)

This matter concerned an appeal by an applicant for a Partner (Temporary) (Class UK) visa, Subclass 820, against a decision that he did not meet certain criteria. The applicant, a Macedonian national, claimed to be in a de facto relationship with an Australian citizen sponsor. The primary issues before the Tribunal were whether the parties were in a genuine de facto relationship at the time of the application and at the time of the decision, and whether there were compelling reasons to waive the Schedule 3 criteria, which the applicant had not met due to lodging his application outside the prescribed timeframe.

The Tribunal considered extensive evidence, including statutory declarations, photographs, financial documents, and correspondence, detailing the parties' relationship which commenced in late 2011. This evidence addressed the financial, household, social, and commitment aspects of their relationship, as outlined in Regulation 1.09A of the Migration Regulations 1994. The Tribunal also took into account the sponsor's significant health issues, including cancer treatment, and the applicant's role in providing her with ongoing support. Furthermore, the Tribunal considered documents relating to the applicant's criminal proceedings, which were deemed relevant to supporting the genuineness and ongoing nature of the relationship.

The Tribunal found that the weight of the evidence supported the conclusion that the applicant and sponsor were in a genuine de facto relationship at the time of the application and continued to be so at the time of the decision. It also concluded that there were compelling reasons not to apply the Schedule 3 criteria, particularly given the long duration of the relationship, the sponsor's health circumstances, and the substantial passage of time since the application was lodged. Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, directing that the applicant met the criteria under cl.820.211, cl.820.221, and r.2.03A of Schedule 2 to the Regulations.