Wang (Migration)

This matter concerned an appeal by a visa applicant against a decision of the Tribunal regarding a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner). The central dispute revolved around whether the applicant met the Schedule 3 criteria for the visa, and if not, whether compelling reasons existed to waive those criteria.

The court was required to determine if the applicant, who did not hold a substantive visa at the time of application, met the Schedule 3 criteria. If the applicant failed to meet these criteria, the court had to consider whether compelling reasons existed for the Tribunal not to apply them, as mandated by migration law.

The Tribunal found that the applicant had not held a substantive visa for more than 28 days prior to lodging the application, thus failing to meet Schedule 3 criteria 3001. However, the Tribunal identified compelling reasons to waive these criteria. These reasons included the long-standing, genuine, and cohabiting relationship of the parties since July 2013, their marriage in May 2014, and the birth of their daughter in April 2018. Crucially, the Tribunal considered the significant care the applicant provided to their daughter due to the sponsor's physical impairment resulting from spinal surgery, which limited her ability to care for the child. The Tribunal also noted the economic dependency of the sponsor on the applicant and the potential economic hardship if the applicant were required to depart Australia.

The Tribunal remitted the decision for reconsideration, finding that compelling reasons existed to not apply the Schedule 3 criteria.