Singh (Migration)

The Administrative Appeals Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant, an Indian national, had not held a substantive visa since November 2011. The application for the Partner visa was made more than 28 days after the applicant's last substantive visa ceased. The Federal Circuit Court had previously remitted a prior Tribunal decision due to jurisdictional error, specifically the Tribunal's failure to adequately assess the applicant's evidence regarding an Australian citizen child of his relationship with the sponsor.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Partner (Temporary) (Class UK) visa, particularly in light of his failure to apply within 28 days of his last substantive visa ceasing and his subsequent lack of a substantive visa. This required the Tribunal to consider the application of Schedule 3 criteria of the Migration Regulations 1994, specifically whether there were compelling reasons for not applying these criteria. The Tribunal also had to determine if the applicant's relationship with the sponsor met the criteria for a partner visa, considering the various aspects of their relationship as outlined in regulation 1.15A.

The Tribunal accepted, based on the oral and documentary evidence, that there was an Australian citizen child of the applicant's relationship with the sponsor, thus satisfying a key aspect of the relationship criteria. However, the Tribunal found that the applicant had not demonstrated compelling reasons for not applying the Schedule 3 criteria. The Tribunal noted that the relationship had ceased, there was no ongoing contact, care, or support provided to the former partner or the child, and the applicant's claims of family violence by the sponsor were uncorroborated. While some financial hardship was acknowledged if the visa refusal was affirmed, this was not considered sufficient to constitute compelling reasons for waiving the Schedule 3 requirements. The Tribunal concluded that the applicant had not satisfied the necessary criteria for the visa.