This case involved a decision on a refused Partner visa application. The applicant applied for the visa on the basis of their relationship with his sponsor who is an Australian citizen. The delegate refused to grant the visa due to the fact that they were not satisfied on the evidence provided that the applicant and sponsor were in a spousal relationship. The applicant applied for a review of the decision to the Migration Review Tribunal.

Immigration Solutions Lawyers (ISL) provided a detailed submission on behalf of the applicant with further evidence that provided a background to the application and an explanation of the applicant’s experiences with his previous migration agent who failed to advise him of the evidentiary requirements relevant to his application and who also failed to inform him about the Department’s requests for further information. ISL provided more evidence concerning the applicant’s financial, commitment, social and household aspects of the relationship at time of the application. The submission also argued that there were compelling reasons for not applying the Schedule 3 criteria.

The issue in the present case was whether the applicant and sponsor were in a spousal relationship at the time of the application and at the time of the decision, and additionally, whether there were compelling reasons not to apply the Schedule 3 criteria. Having regard to the totality of the evidence before it, the Tribunal decided that the applicant and sponsor were genuine spouses. However, its decision in relation to whether the Schedule 3 requirements could be waived was more complex. This was because, as the Tribunal noted, it had to be mindful of the revised policy guidance issued on the 1^st of July 2014. However, the Tribunal emphasised that Department policy is not binding on the Tribunal and that the Tribunal is not limited to only consider the circumstances identified in the policy but rather is obliged to consider all the circumstances of the case. This includes any matters put forward by an applicant and involves the Tribunal making a determination on the evidence as a whole as to whether there are compelling reasons.

Prior to the policy changes, ISL had submitted a number of compelling circumstances for the Tribunal to consider; the long standing nature of the parties relationship, significant emotional hardship on the sponsor as a result of her reliance on the applicant for emotional support as she had no other close family members in Australia, the applicant and sponsor had been seeking to have a baby for the past few years and were exploring fertility issues, emotional hardship and risk of physical harm to the applicant if he were forced to separate from the sponsor and return to his home-country, financial hardship on the applicant and sponsor if forced to return, and security issues for both the applicant and sponsor if required to return to the applicant’s home country.

The Tribunal accepted the list of compelling circumstances, was satisfied that they were compelling reasons and as such waived the Schedule 3 criteria. The Tribunal then decided to remit the application to the Department of Immigration and Border Protection.