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Tribunal: Member Linda Holub

A delegate of the Minister for Immigration and Border Protection refused to grant the applicant a Subclass 820 (Partner) visa. On 5 March 2018, the Administrative Appeals Tribunal affirmed the decision.

Clause 820.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) provides that an applicant who is not the holder of a substantive visa at the time of an application must meet certain criteria in Schedule 3 to have their visa granted. That clause also provides that if the criteria are not satisfied, then the applicant may still be granted the visa if the decision maker is satisfied there are compelling reasons  not to apply the criteria..

The Tribunal was not satisfied that the applicant met the Schedule 3 criteria and therefore had to consider whether there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal stated that the compelling reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria.[1] The Tribunal elaborated by stating that what amounts to compelling reasons in each case was a question of fact, having regard to all the circumstances of the case. To find whether compelling reasons exist, the Tribunal was required to look at all the circumstances of the case.

The applicant arrived in Australia in 2006 on a fraudulent Korean passport and remained illegally until applying for a Partner visa in October 2014. The sponsor is the applicant’s wife, whom he married in November 2012. The sponsor owns a cleaning business for which the applicant works full time. The applicant claimed that the business is set up for him but in the sponsor’s name, as he does not have work rights to operate a business. The applicant claimed he had numerous compelling reasons for having the Partner visa granted including the sponsor requiring his support for her mental and physical issues, the financial loss the sponsor may suffer if the visa was refused and the support needs of the sponsor’s daughter, who it was claimed also suffered from mental health issues.

The Tribunal expressed concerns about the credibility of the applicant’s claims and evidence. The Tribunal put to the applicant that his illegal entry into Australia demonstrated that he was prepared to rely on false information if it benefited him and therefore it undermined his credibility, and as a result it called into question his claims and evidence regarding the compelling circumstances that existed.

The applicant claimed the sponsor was physically weak and suffered from anxiety and depression and needed his support. While the Tribunal accepted the sponsor’s diagnosis of anxiety and depression by a clinical psychologist, the Tribunal placed significant weight on the fact the applicant was not aware of whether the sponsor was receiving ongoing treatment. The Tribunal also placed weight on the fact the written medical evidence relating to the sponsor’s physical conditions was not recent. The reasons and evidence presented did not convince the Tribunal that the sponsor would not be able to cope without the applicant. The Tribunal was not satisfied on the available medical and oral evidence that the sponsor’s age and health concerns provided a compelling reason not to apply the Schedule 3 criteria.  

The Tribunal acknowledged the sponsor’s financial position would change in the event the applicant was required to return to China. In considering whether this provided a compelling reason, the Tribunal put weight on the fact that the business is in the sponsor’s name and that she can hire someone to assist her. The Tribunal considered the applicant’s claims that getting help would reduce their profit margin and accepted that may be the case. However, there was no evidence before the Tribunal that the sponsor’s financial position would be dire.

While the Tribunal was prepared to accept the applicant may have been instrumental in the life of the sponsor’s daughter, the Tribunal was not satisfied that there was any evidence before it that compelled the Tribunal to waive the Schedule 3 criteria because of the support now provided by the applicant to her, or in relation to her mental health issues.

The Tribunal was not satisfied any of the above, whether considered separately or cumulatively, amounted to ‘compelling reasons' for not applying the Schedule 3 criteria. Accordingly, the applicant did not meet clause 820.211.

Read the full written decision on Austlii.


[1] MZYPZ v MIAC [2012] FCA 478 at [10] and Babicci v MIMIA (2005) 141 FCR 285 at [24].