1516438 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, where the applicant did not hold a substantive visa at the time of application. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria in Schedule 3 of the Migration Regulations 1994, or if there were compelling reasons for these criteria to be waived. The applicant’s substantive visa expired on 10 July 2013, and the visa application was lodged on 11 March 2015.

The primary legal issues before the Tribunal were whether the applicant satisfied criterion 3001 of Schedule 3, which requires an application to be lodged within 28 days of the last day a substantive visa was held, and if not, whether there were compelling reasons to waive this requirement. The Tribunal also considered the applicant's explanation for the delay in lodging the application and the circumstances of his relationship and future plans in Australia.

The Tribunal found that the applicant did not satisfy criterion 3001 as the application was lodged significantly outside the 28-day timeframe. In considering whether there were compelling reasons to waive the Schedule 3 criteria, the Tribunal referred to established case law, noting that such reasons must be sufficiently convincing and the circumstances sufficiently powerful. The Tribunal concluded that a genuine relationship, in itself, does not constitute compelling reasons for waiving the criteria. The applicant’s explanations for the delay, including forgetting to extend his visa, being busy, and concerns about his wife’s reaction to his return to Vietnam, were not considered sufficiently compelling to override the regulatory requirements. The Tribunal also noted the applicant's stated intentions to build a unit and have children with his partner, and his financial commitments, but found these did not meet the threshold for compelling reasons.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa, as the applicant failed to meet the necessary Schedule 3 criteria and no compelling reasons were found to waive them.