Lau (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant who was an unlawful non-citizen at the time of lodgement. The primary dispute revolved around whether the applicant met the Schedule 3 criteria, and if not, whether there were compelling reasons to waive these requirements. The court was also required to consider whether the applicant was, and remained, the spouse of the sponsor, and if they satisfied other relevant criteria under cl.820.211(2)(d) of the Migration Regulations 1994.

The legal issues before the court were whether the applicant satisfied the Schedule 3 criteria, and alternatively, if not, whether compelling reasons existed for their waiver. Additionally, the court had to determine if the applicant met the requirements of cl.820.211(2)(d) concerning their spousal relationship with the sponsor at the time of application and at the time of the decision. The court considered extensive documentary evidence, including marriage certificates, statutory declarations, financial records, and correspondence, to assess the genuineness and continuation of the relationship.

The court found that the applicant had been an unlawful non-citizen for a period of five days between the expiry of their last substantive visa and the lodgement of their Partner visa application. While this meant the Schedule 3 criteria were not automatically met, the court determined that there were compelling reasons for not applying these criteria. The court also found that the applicant had provided sufficient evidence to demonstrate a genuine and continuing relationship with the sponsor, satisfying the requirements of cl.820.211(2)(d) and cl.820.221(1) of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for the Partner (Temporary) (Class UK) visa, with the direction that the applicant met the specified criteria for a Subclass 820 (Partner (Temporary)) visa.