TRAN (Migration)

This matter concerned an application for review by Mr Thanh Hai Tran of a decision to refuse him a Partner (Temporary) (Class UK) visa, subclass 820. Mr Tran, born in Vietnam, arrived in Australia on a tourist visa in 2008 and had remained in Australia on subsequent tourist visas, the last of which expired in August 2009. He lodged his partner visa application in April 2017. The sponsor was also born in Vietnam. The parties claimed to have met in February 2012 and commenced a de facto relationship in January 2014. The delegate had not regarded the genuineness of the relationship or the effects of separation as compelling reasons to waive Schedule 3 criteria.

The Tribunal was required to determine whether there were compelling reasons to waive the Schedule 3 criteria, given that Mr Tran did not hold a substantive visa at the time of application. Specifically, the Tribunal considered whether the claimed five-year de facto relationship, the parties' cohabitation on a farm, and the potential emotional and physical hardship of separation constituted such compelling reasons. The Tribunal also considered the applicant's claims regarding his past marriage, his sexual orientation, and his inability to return to Vietnam.

The Tribunal reasoned that while it was not bound by Department policy, the existence of compelling reasons for waiving Schedule 3 criteria was a question of fact to be determined by considering all circumstances. The Tribunal noted that simply being in a genuine and continuing relationship, or a long-standing one, was not, in itself, a compelling reason, as these were essential requirements for the visa. The Tribunal found that while separation would cause some difficulties, these were generally foreseeable consequences of lodging a partner visa application while not holding a substantive visa. The Tribunal was not satisfied that the specific circumstances of the relationship, or the applicant's claimed inability to return to Vietnam due to growing acceptance of LGBTI persons in his home country, presented compelling reasons to waive the Schedule 3 criteria.

The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, finding that the applicant did not satisfy the criteria for the grant of the visa.