Khehra (Migration)

This matter concerned an application for review of a decision by the delegate of the Minister for Immigration to refuse a Partner (Temporary) (Class UK) visa (subclass 820) made by the applicant on 25 September 2014. The delegate's decision, made on 23 January 2015, was affirmed by the Administrative Appeals Tribunal (AAT) on 21 April 2016. The applicant appealed to the Federal Circuit Court, which, by consent order on 22 December 2017, remitted the matter back to the AAT due to a denial of procedural fairness by the AAT in the initial review. This denial arose from the non-disclosure to the applicant of a certificate issued under section 376 of the *Migration Act 1958* (Cth), which related to documents potentially relevant to the review.

The primary legal issue before the reconstituted AAT was whether there were compelling reasons to waive the Schedule 3 criteria for the visa. The AAT was required to determine if the applicant's circumstances warranted such a waiver, considering the breakdown of his relationship with the sponsor, an anonymous allegation of a contrived relationship, and the health of the sponsor's mother. The AAT also had to consider the procedural requirements for a remitted matter, deciding to conduct a fresh review rather than relying on the previous tribunal's proceedings.

The AAT conducted a fresh hearing, explaining the relevant visa regulations to the applicant, who was representing himself. While the AAT indicated it would not fundamentally depart from findings regarding the applicant's visa history, reasons for being in Australia, studies, and marriage, it departed from the previous tribunal's findings concerning the nature of the marriage. The AAT found that the marriage was entered into for reasons of companionship and support of the sponsor's family, rather than being a contrived relationship. The AAT ultimately found no compelling circumstances to waive the Schedule 3 criteria, and therefore affirmed the delegate's decision to refuse the visa.