Gurung (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, made by the applicant who did not hold a substantive visa at the time of application. The primary dispute revolved around whether the applicant met the criteria set out in Schedule 3 of the Migration Regulations 1994, or if there were compelling reasons to waive these criteria. The decision was made by Peter Smith, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, and 3004, or if compelling reasons existed for the waiver of these criteria as permitted by clause 820.211(2)(d) of Schedule 2 to the Regulations. It was not disputed that the applicant did not hold a substantive visa at the time of application, nor that the applicant had not entered Australia as a holder of a Subclass 995 visa or special purpose visa.

The Tribunal considered the evidence presented, including new information not provided to the Department. It noted that Schedule 3 criteria 3003 did not apply in this case due to a lack of evidence to bring the applicant within its scope. The Tribunal found that the applicant had provided substantial evidence demonstrating a genuine and continuing spouse relationship, including joint property ownership, financial commitments, shared household responsibilities, joint social activities and travel, living together for a substantial period, and the sponsor's emotional dependence on the applicant. Based on this evidence, the Tribunal concluded that compelling reasons existed to waive the Schedule 3 criteria.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the relevant criteria for a Subclass 820 (Partner) visa, including clause 820.211(d)(ii), clause 820.211, and clause 820.221 of Schedule 2 to the Regulations.