1709170 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by a national of Korea. The applicant had remained in Australia unlawfully for approximately three years after the cancellation of his Student visa before lodging the Partner visa application. The sponsor, who was an Australian citizen, was born in Korea and had a child with the applicant. The dispute before the Tribunal was whether the applicant met the Schedule 3 criteria for the visa, or if there were compelling reasons to waive these requirements.

The primary legal issues before the Tribunal were whether the applicant held a substantive visa at the time of his application, and if not, whether he had applied within 28 days of his last substantive visa ceasing. If these conditions were not met, the Tribunal was required to determine if there were compelling reasons to not apply the Schedule 3 requirements, as mandated by clause 820.211(2)(d) of the Migration Regulations 1994. The Tribunal noted that the applicant did not dispute not holding a substantive visa at the time of application.

The Tribunal found that the applicant had not made his Partner visa application within the 28-day timeframe stipulated by criterion 3001 of Schedule 3, as his last substantive visa ceased on 27 February 2014 and his application was lodged on 24 January 2017. Consequently, the Tribunal was required to consider whether compelling reasons existed to waive these Schedule 3 criteria. The Tribunal accepted that the applicant and sponsor were in a genuine and continuing spousal relationship and considered evidence of their Australian-born child, the undue hardship and adverse consequences on the sponsor if the applicant were to return to Korea, and the sponsor's financial, emotional, and practical reliance on the applicant.

Given these considerations, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 820.211(2)(d)(ii) of Schedule 2 to the Regulations. This indicated that compelling reasons were found to exist for not applying the Schedule 3 requirements in this specific case.