Zhang (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs not to grant the applicant a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant, who had been in Australia unlawfully for over 12 years, lodged his application on 21 April 2017, claiming to be in a de facto relationship with an Australian citizen. The primary issues before the Tribunal were whether the parties were in a genuine spousal relationship and whether the applicant met the Schedule 3 criteria, particularly concerning the waiver of requirements due to the application being lodged outside the prescribed timeframe.

The Tribunal was required to determine if the applicant and his sponsor were in a de facto relationship as defined by the *Migration Act 1958* (Cth) and associated regulations, considering the financial, social, and commitment aspects of their relationship. Furthermore, the Tribunal had to assess whether the applicant satisfied the Schedule 3 criteria, which typically apply when a visa application is made after the applicant's last substantive visa has ceased. This involved considering whether there were compelling reasons for a waiver of these criteria, such as financial hardship or other circumstances beyond the applicant's control, and whether the applicant had substantially complied with visa conditions.

The Tribunal found that while the parties had provided evidence of a valid marriage and some documentary evidence supporting their joint finances and shared address, the evidence regarding the other criteria for a spousal relationship was limited. Crucially, the applicant had been an unlawful non-citizen in Australia for over 12 years, with his last substantive visa ceasing on 15 March 2005, and he lodged his Partner visa application on 21 April 2017. The Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa, including the Schedule 3 requirements, and therefore affirmed the decision not to grant the visa.