Thota (Migration) [2020] AATA 4222

The AAT remitted the decision to refuse the applicant’s partner visa application for reconsideration. 

The applicant applied for a partner visa on the basis of his relationship with his sponsor and was refused by a delegate of the Minister of Home Affairs (the Department on the basis that the applicant ceased to hold a substantive visa for more than 28 days prior to lodging a partner visa application. The Tribunal heard that current visa criteria requires that an application to be lodged within 28 days of an applicant’s last substantive visa unless the Department is satisfied that there are compelling reasons for not applying those criteria. In this case, the Department was not satisfied that there were compelling reasons to waive this requirement.

In addition to finding that the visa application was not lodged within 28 days of the applicant’s last substantive visa, the Tribunal also had to consider whether there were compelling reasons to waive the requirement. The applicant and sponsor provided documented and oral evidence to support their claim for a waiver, including:

  • the length of the relationship, that was in existence for more than 4 years
  • that they were known, and accepted by their families and community, as partners
  • the sponsor had been unable to move offshore and leave her family in Australia for the full period of an application for an offshore partner visa
  • the applicant was supporting the sponsor through her escalating physical and mental health issues
  • the applicant was providing emotional, physical and financial support to the sponsor who would be significantly impacted if the applicant had to leave Australia.

Based on these factors, the AAT was satisfied that there were compelling reasons for not applying the Schedule 3 criteria.

Read the full decision

Written by Ross Ahmadzai

8 Apr, 2024

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