Harpreet Singh (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to refuse a Partner (Temporary) (Class UK) Visa (subclass 820). The applicant, Harpreet Singh, applied for the visa on 25 January 2016, based on his relationship with his sponsor. The visa was refused because the applicant did not satisfy the Schedule 3 requirements, and the delegate found no compelling reasons to waive these criteria. The case was before the Administrative Appeals Tribunal (AAT) following a remittal by the Federal Circuit Court, which found the AAT's previous decision affected by jurisdictional error for failing to consider the applicant's claims of compelling reasons for not applying Schedule 3.

The primary legal issue before the Tribunal was whether the applicant met the criteria set out in Schedule 3 of the Migration Regulations, or alternatively, whether there were compelling reasons for those criteria to be waived. It was not disputed that the applicant did not hold a substantive visa at the time of his application, meaning he was required to satisfy Schedule 3 criteria 3001, 3003, and 3004, unless the Minister was satisfied that compelling reasons existed for their non-application. The applicant had previously submitted that compelling reasons included the duration of his relationship and marriage, acceptance of the relationship by the Indian community, and the severe stress and mental breakdown the sponsor would suffer if the visa were refused.

The Tribunal acknowledged that the duration of the relationship was a factor that should have been considered as a compelling reason for not applying the Schedule 3 criteria. The applicant and his sponsor, who gave evidence with the assistance of a Punjabi interpreter, had also presented arguments concerning the inception of their relationship and marriage according to Punjabi customs, the welfare of their Australian citizen children, and the stress caused by a long period of separation. These factors were to be weighed in assessing the degree of hardship and the compelling reasons for waiving the Schedule 3 requirements.