Garay (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant born in the Philippines and sponsored by an Australian citizen. The core dispute revolved around whether the parties were in a genuine spousal relationship at the time of the application and the decision, and whether there were compelling reasons to waive the Schedule 3 criteria, as the application was not made within 28 days of the applicant's last substantive visa expiring.

The Tribunal was required to determine if the applicant and sponsor were in a valid spousal relationship, which necessitates a marriage valid under the Act, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation without permanent separation. Additionally, the Tribunal had to assess whether compelling reasons existed to justify a waiver of the Schedule 3 criteria, considering the potential for considerable financial and emotional hardship if the parties were separated.

The Tribunal considered the definition of a spousal relationship under section 5F of the Migration Act 1958 (Cth) and Regulation 1.15A, which requires an examination of financial, household, social aspects, and the nature of the commitment to each other. While the parties provided a marriage certificate, indicating a valid marriage, the Tribunal found that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met the criteria under clauses 820.211 and 820.221 of Schedule 2 to the Regulations.