1611439 (Migration)

The Administrative Appeals Tribunal (AAT) reviewed a decision by a delegate of the Minister for Immigration to refuse to grant the applicant a Partner (Temporary) (Class UK) visa, subclass 820. The applicant applied for the visa on the basis of his relationship with his sponsor. The delegate's refusal was based on the applicant's failure to meet the Schedule 3 criteria, with no compelling reasons identified to waive these requirements.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, or if there were compelling reasons to waive them. Specifically, the Tribunal considered whether the applicant had lodged his visa application within 28 days of the relevant day, as required by Schedule 3 Criterion 3001. If this criterion was not met, the Tribunal had to determine if compelling reasons existed to excuse compliance with the Schedule 3 requirements, a concept requiring sufficiently convincing circumstances to warrant waiving the criteria.

The Tribunal found that the applicant did not satisfy Criterion 3001 because his application was not lodged within 28 days of the last day he held a substantive visa. The applicant had arrived in Australia in March 2010, applied for a protection visa in July 2010, and had held only bridging visas since then. The Tribunal then examined the applicant's claimed compelling reasons for waiving the Schedule 3 criteria, which included a fear of serious harm from his brother if he returned to Jordan due to alleged honour killings, and the sponsor's inability to survive financially and emotionally if the applicant was offshore. The Tribunal was not satisfied that the applicant would be at risk of serious harm from his brother, noting the passage of time since the alleged threats and the brother's family responsibilities. Furthermore, the Tribunal found it unreasonable to conclude that the parties could not rearrange their affairs to allow for an offshore application, given the applicant's qualifications and income from Jordan, and the sponsor's ability to manage her affairs.

Consequently, the Tribunal was not satisfied that compelling reasons existed to waive the Schedule 3 criteria. As the applicant did not meet these criteria, and also did not satisfy alternative sub-clauses of clause 820.211, the Tribunal affirmed the delegate's decision to refuse the visa.