1715261 (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a decision not to grant the visa. The central issue was whether the applicant met the Schedule 3 criteria, or if there were compelling reasons to waive them, given the applicant did not hold a substantive visa at the time of application and had been in Australia unlawfully for approximately seven years.

The Tribunal was required to determine if the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which mandates that an application be lodged within 28 days of the last day a substantive visa was held. If criterion 3001 was not met, the Tribunal had to consider whether compelling reasons existed to dispense with the Schedule 3 requirements. The applicant's last substantive visa expired in December 2008, meaning the current application was lodged over eight years later, thus failing to meet the 28-day timeframe stipulated by criterion 3001.

In assessing whether compelling reasons existed to waive the Schedule 3 criteria, the Tribunal referred to established legal principles, noting that "compelling reasons" must be sufficiently convincing and the circumstances powerful enough to warrant a waiver. The applicant's immigration history was found to be poor, having remained in Australia unlawfully since 2008, working without work rights, and having a prior Protection visa application refused and affirmed on review. The Tribunal considered the applicant's stated reasons for not applying for the visa earlier, including a mortgage and the sponsor's unemployment, but found these did not constitute compelling reasons to waive the Schedule 3 criteria.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, Subclass 820, as the applicant failed to meet the necessary Schedule 3 criteria and no compelling reasons were found to justify waiving them.