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Tribunal: Member R Maguire

The AAT remitted the decision of a delegate of the Minister for Home Affairs (the Department) refusing to grant the applicant a temporary partner visa. The Tribunal decided he had compelling circumstances for not meeting the criteria.

The applicant, a Romanian citizen, came to Australia in 2016 on a visitor visa which was valid for three months. During this time, he applied for a student visa, but was refused. He sought review in the AAT, but later withdrew his application after marrying his sponsor and applying for a partner visa.

The Department refused the student visa because more than 28 days had passed since he had held his visitor visa, making him ineligible. The Tribunal had to decide whether there were compelling reasons for granting the new visa despite the lateness of his application.

The Tribunal learned the applicant chose to stay without a valid visa to support his wife. The marriage subsequently broke down and their ongoing contact was characterised by bullying and intimidation by his ex-wife.

Reports from a social worker and psychologist said the applicant’s mental health deteriorated, and that he suffered extremely severe depression, anxiety and stress resulting in hospital admissions. This evidence was consistent with what the Tribunal member observed of the applicant’s mental health at the Tribunal.

The applicant said returning to Romania ‘would be like the sky falling on him’ and he would feel more depressed and worried. The Tribunal requested further evidence as to the applicant’s mental health, and consequences for his health if he returned to Romania.

His psychologist submitted she believed the applicant had a car accident caused by a blackout following a severe anxiety attack.

Evidence from witnesses including family, friends and mental health professionals, painted a negative picture of Romania’s health system, particularly in so far as mental health issues are concerned.

The Tribunal has been left with the impression that the applicant’s wife and visa sponsor had her own mental health issues, and that the nature of her behaviour was likely to have impacted on a vulnerable applicant’s ability to exercise his own free will at the time of the visa application, and ultimately on his own mental health.

Emotional hardship can be considered a compelling factor in relation to the Schedule 3 criteria, and the Tribunal found that the applicant provided ample evidence to demonstrate the severity of the anticipated hardship.

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