Sy (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, made by an applicant who had ceased to hold a substantive visa more than 28 days prior to lodging the application, resulting in an unlawful presence in Australia for over three years. The dispute centred on whether there were compelling reasons to waive the Schedule 3 criteria, which typically apply in such circumstances. The decision was made by C. Morfuni.

The primary legal issues before the Tribunal were whether the applicant met the criteria for the Partner (Temporary) (Class UK) visa, subclass 820, specifically concerning the application of Schedule 3 criteria, and whether compelling reasons existed to waive these criteria. The Tribunal was required to consider the genuineness and commitment of the spousal relationship at the date of the decision, as well as the evidence presented regarding compelling reasons for not applying Schedule 3.

The Tribunal considered extensive evidence demonstrating a genuine and committed same-sex de facto relationship, which had progressed to marriage after the application was lodged. This evidence included statutory declarations from both parties, letters from friends, family, a priest, and Members of Parliament, all attesting to the parties' devotion and the long-term nature of their relationship. While acknowledging the policy that a genuine relationship or hardship from separation are not, in themselves, compelling reasons to waive Schedule 3, the Tribunal found that the totality of the evidence, including factors such as the health of the sponsor and her mother, and COVID-19 related issues, constituted compelling reasons. The Tribunal also noted that the applicant had complied substantially with visa conditions and bridging visa conditions.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. This indicated that the Tribunal was satisfied that the applicant had established a genuine and committed relationship and that compelling reasons existed to waive the Schedule 3 criteria.