1711977 (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), made by an applicant who did not hold a substantive visa at the time of application. The primary issue was whether the applicant met the Schedule 3 criteria, or if there were compelling reasons for these criteria to be waived.

The Tribunal was required to determine if the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which mandates that a visa application be lodged within 28 days of the last day the applicant held a substantive visa. If the applicant did not meet these criteria, the Tribunal had to assess whether compelling reasons existed to waive them.

The Tribunal found that the applicant did not satisfy criterion 3001 as his substantive visa expired over five years before he lodged his Partner visa application. Consequently, the Tribunal considered whether there were compelling reasons to waive the Schedule 3 criteria. Applying the principles from cases such as *MZYPZ v MIAC* and *Babicci v MIMIA*, the Tribunal determined that the applicant's circumstances did not constitute compelling reasons. The Tribunal noted that the applicant had remained in Australia as an unlawful non-citizen, appeared to have manipulated his circumstances, and demonstrated low moral character by purchasing property and opening a business with his sponsor despite lacking the legal right to reside or work in Australia.

Given these findings, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.