1720152 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820) by an applicant who did not hold a substantive visa at the time of application. The Tribunal was required to determine whether the applicant satisfied the Schedule 3 criteria, or if there were compelling reasons for those criteria not to be applied.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Schedule 3 to the Migration Regulations 1994, specifically criteria 3001, 3003, and 3004, as mandated by subclause 820.211(2)(d) of the Regulations. This involved assessing whether the visa application was lodged within the prescribed timeframe and considering the circumstances under which the applicant became unlawful and the existence of compelling reasons for waiving the Schedule 3 criteria.

The Tribunal found that the applicant did not satisfy criterion 3001 because the Partner visa application, lodged on 18 April 2017, was not made within 28 days of the applicant's last substantive visa expiring on 30 August 2011. Consequently, the applicant failed to meet the requirements of subclause 820.211(2)(d)(ii). However, the Tribunal determined that the appropriate course was to remit the application for reconsideration by the Minister, with a direction that the applicant meets the criteria under subclause 820.211(2)(d)(ii) of Schedule 2 to the Regulations.