Zhang (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs to refuse a Partner (Temporary) (Class UK) visa (subclass 820). The applicant, Ms Zhang, had applied for the visa without holding a substantive visa, meaning that Schedule 3 criteria were engaged. The Department had invited the applicant to provide reasons why these criteria should be waived, and upon review of the provided submissions and evidence, affirmed the decision to refuse the visa.

The Tribunal was required to determine whether there were compelling reasons to waive the Schedule 3 criteria, given that the applicant did not hold a substantive visa at the time of her application. The applicant's visa history indicated that her last substantive visa, a Temporary Work (Skilled) (subclass 457) visa granted as a dependent spouse, ceased on 29 June 2017 when her then husband's visa was cancelled. She had separated from her then husband shortly after arriving in Australia in 2014 but believed her visa remained valid until March 2018. She met her current sponsor in June 2016 and they commenced living together in October 2016.

The Tribunal considered the applicant's submissions regarding compelling reasons for a waiver. These included the emotional difficulty of separation for an offshore Partner visa application, the potential loss of the sponsor's employment and ability to support his children and home loan if he accompanied her offshore, and the significant financial burden of reapplying for a visa. The applicant also expressed shame at the prospect of returning to China due to her divorce. However, the Tribunal noted that it was restricted to reviewing the delegate's decision on the Schedule 3 criteria and had not assessed the genuineness of the partnership. Ultimately, the Tribunal affirmed the delegate's decision, finding that the presented reasons did not meet the threshold for waiving the Schedule 3 criteria.