ISL brought a case before the MRT where the issue was whether or not there were compelling reasons not to apply the Schedule 3 criteria. The case involved a decision to refuse a Partner visa application. It was the first case brought by ISL before the MRT since the policy changes.
This was a complex decision because of the MRT’s requirement to be mindful of the revised policy guidance that was issued on the 1st of July 2014.
In making its decision, the Tribunal emphasised that Department policy is not binding on it and nor is the Tribunal limited to only consider the circumstances identified in the policy (old or new). In fact, the Tribunal indicated that it was obliged to consider all the circumstances of the case and to make a determination on the evidence as a whole.
Prior to the policy changes, ISL submitted a number of compelling circumstances for the Tribunal to consider in this case. These included; the 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, the long standing nature of the parties’ relationship, 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.
After considering these, the Tribunal accepted the list of compelling circumstances and waived the schedule 3 criteria. The application was remitted to the Department of Immigration and Border Protection for the partner visa to be granted.
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