1716120 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant did not hold a substantive visa at the time of application and therefore was required to satisfy the criteria in Schedule 3 of the Regulations, unless there were compelling reasons for these criteria not to be applied. The Tribunal was required to determine whether the applicant met the Schedule 3 criteria, and if not, whether compelling reasons existed to waive them.

The primary legal issue was whether the applicant satisfied criterion 3001 of Schedule 3, which requires an application to be lodged within 28 days of the 'relevant day', defined as the last day the applicant held a substantive visa. The applicant's last substantive visa, a subclass 600 Visitor visa, expired on 27 January 2016, more than a year before the current application was filed. Consequently, the applicant did not satisfy criterion 3001. The Tribunal then considered whether there were compelling reasons for not applying the Schedule 3 criteria, noting that such reasons must be sufficiently convincing and powerful to warrant a waiver.

The Tribunal reasoned that while the parties' relationship had ended, the sponsor remained supportive of the applicant's presence in Australia to maintain a continuing and important role in their Australian citizen child's life. The sponsor indicated that she would not be in a position to sponsor the applicant for an offshore partner visa application given the breakdown of their relationship. The Tribunal found that these circumstances constituted compelling reasons for not applying the Schedule 3 criteria.

Accordingly, 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.