Background Facts and Reason for Partner Visa Refusal
The Applicant, a national of India, sought a review of the refusal of a Partner (Temporary) (Class UK) visa. The initial refusal decision was due to insufficient evidence of the claimed spousal relationship, the Applicant’s immigration history of lodging unmeritorious applications, and the failure to depart Australia despite being granted several Bridging visas. The delegate concluded that there were no compelling reasons to waive the Schedule 3 requirement.
Reason Why the Tribunal Remits the Partner Visa Application
The Applicant then sought a review by the Tribunal, providing additional evidence including a registered birth certificate for a child born to the applicant and the sponsor. The Tribunal, after reviewing all the evidence, decided that a hearing was not necessary and concluded that the partner visa Application should be remitted for reconsideration.
First, the Tribunal accepted that the definition of spouse under section 5F was met, as a valid registered marriage certificate was provided.
The Tribunal continues to evaluate whether the Applicant and the Sponsor meet the requirements for a spouse relationship for the partner visa:
Financial Aspect of the Partner Visa
- No evidence of joint ownership of real estate or liabilities.
- Provided a transaction listing showing joint bank account usage.
- Declarations and statements indicate pooling of financial resources.
- Shared day-to-day household expenses demonstrated through bills and bank transactions.
- Conclusion: Financial aspects suggest a genuine spousal relationship.
Nature of the Household
- Joint responsibility for the care and support of a child evidenced by documentation and statements.
- Living arrangements supported by tenancy agreement and rent payment history.
- Declaration and statements affirming shared housework responsibilities.
- Conclusion: Household aspects strongly suggest a genuine spousal relationship.
Social Aspect of the Partner Visa
- Represented themselves as married through declarations, a marriage certificate, and a medical practitioner’s letter.
- Positive opinions from friends and family in declarations and statements.
- Photographs of joint social activities submitted.
- Conclusion: Social aspects strongly suggest a genuine spousal relationship.
Commitment to Each Other
- Relationship inception and development detailed, meeting online, developing a friendship, and marrying.
- Six years of living together and almost six years of marriage.
- Declarations emphasizing companionship and emotional support during difficult times.
- Planning a family and having a child together indicates a long-term commitment.
- No evidence of either party being in a relationship with a third party.
- Conclusion: Evidence strongly suggests a genuine and committed spousal relationship.
The Tribunal assigns great weight to the evidence supporting each aspect of the partner visa requirement, collectively pointing towards the parties being in a genuine spousal relationship throughout the relevant times.
Why Tribunal Waived Schedule 3 Criteria:
The Applicant, without a substantive visa, did not meet the criteria to depart Australia within 28 days of the visa expiry. Therefore, the Tribunal then examined the following compelling reasons:
- Australian Citizen Child: The Tribunal accepted evidence of an Australian citizen child as a compelling reason to waive Schedule 3 criteria.
- Long standing relationship and dependence: The Tribunal considered the nearly six-year spousal relationship and the emotional and financial dependence of the sponsor and child on the Applicant as compelling reasons.
- Applicant’s unlawfulness: The Applicant’s history of being unlawful for over two years was acknowledged but given less weight compared to compelling reasons.
The Tribunal, considering all circumstances, concluded that there were compelling reasons not to apply the Schedule 3 criteria, and the applicant met the visa. Tribunal Remits the Matter.
Take on this:
Again, the Tribunal is prone to waive Schedule 3 criteria if the relationship was long-standing, dependant, and genuine, particularly if there is an Australian citizen child involved. The Tribunal will give less weight to the Applicant’s failure to comply with visa conditions to not overstay compared to other compelling reasons.
Case reference: 1824867 (Migration) [2023] AATA 1111 (21 April 2023)
