Naiyaga (Migration)

The Administrative Appeals Tribunal considered an application by Naiyaga for a Partner (Temporary) (Class UK) visa, specifically a Subclass 820 (Partner) visa. The core of the dispute involved the applicant's failure to lodge the application within the prescribed timeframe, necessitating a waiver of Schedule 3 criteria. The Tribunal was required to determine whether the applicant met the criteria for the visa, particularly in light of the circumstances surrounding the late lodgement and the existence of Australian citizen children and ongoing parenting orders.

The legal issues before the Tribunal included whether the applicant had established a genuine de facto relationship, and crucially, whether there were "compelling reasons" to waive the Schedule 3 criteria due to the application being lodged outside the relevant timeframe. The Tribunal also had to consider the implications of the relationship ceasing and the applicant's ongoing legal rights and obligations in respect of a child, as evidenced by parenting orders.

The Tribunal reasoned that the applicant had met certain criteria for the Subclass 820 visa, including aspects of the de facto relationship as defined in regulation 1.09A and specific clauses within Schedule 2 of the Migration Regulations 1994. However, the decision indicates that the assessment of the Schedule 3 criteria, particularly the "compelling reasons" for waiver, required further consideration by the Minister. The Tribunal applied the principles outlined in the Migration Regulations concerning the assessment of de facto relationships and the conditions for waiving Schedule 3 requirements when an application is lodged late.

Ultimately, the Tribunal remitted the application to the Minister with a direction that the applicant met specific criteria for the Subclass 820 (Partner) visa. This direction included meeting the requirements of clause 820.211(2), clauses 820.221(3)(a) and (b)(ii) of Schedule 2, and regulation 2.03A. The remission was for the Minister to consider the remaining criteria for the visa.