Finau (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought before the Tribunal by the applicant. The core of the dispute revolved around whether the applicant had demonstrated a genuine and continuing relationship with their sponsor, and whether the Tribunal had the discretion to waive a criterion relating to the timing of the visa application. The applicant's application was made more than 28 days after their last substantive visa ceased.

The Tribunal was required to determine whether the applicant had provided sufficient evidence to satisfy the criteria for a genuine and continuing relationship, despite the limited evidence presented regarding the financial, household, and social aspects of the relationship, and the nature of the commitment. Furthermore, the Tribunal had to consider whether to exercise its discretion to waive the requirement that the application be made within 28 days of the cessation of the applicant's last substantive visa. The Tribunal also had to consider the sponsor’s and child’s physical health, and the applicant’s role as a father figure to the sponsor’s child, in the context of immigration detention.

The Tribunal found that while the evidence of the relationship's duration was limited, it was nonetheless acceptable. The Tribunal also considered the applicant's role as a father figure to the sponsor's child and the circumstances of immigration detention. Ultimately, the Tribunal determined that the appropriate course was to remit the application for the visa to the Minister for consideration of the remaining criteria. The Tribunal directed that the applicant met specific criteria, including cl. 820.211(2)(d)(ii), cl. 820.211(2)(a), cl 820.221 of Schedule 2 to the Regulations, and reg. 2.03A.