Xu (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant had a history of visa breaches and had lodged her application outside the prescribed timeframe, necessitating consideration of Schedule 3 criteria and the need for compelling reasons for a waiver. The Tribunal was required to determine whether the applicant was in a genuine spousal relationship with her sponsor and whether the Schedule 3 criteria could be waived.

The Tribunal considered the definition of a spousal relationship under section 5F of the Migration Act 1958 (Cth) and Regulation 1.15A(3), which requires regard to be had to all circumstances of the relationship, including financial and social aspects, the nature of the household, and commitment to each other. While the parties provided a marriage certificate, the Tribunal found the evidence supporting the genuineness and continuing nature of the relationship, particularly concerning financial and household aspects, to be minimal and lacking corroboration.

Ultimately, the Tribunal affirmed the decision not to grant the visa. It found that while the parties were validly married, the evidence did not sufficiently demonstrate a genuine and continuing spousal relationship at the time of application or at the time of the decision. Furthermore, the applicant's immigration history and the timing of the application meant that Schedule 3 criteria applied, and the Tribunal was not satisfied that compelling reasons existed for a waiver of these criteria, given the limited evidence of the relationship's genuineness.