1726263 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, by a Vietnamese national who did not hold a substantive visa at the time of application. The dispute centred on whether the applicant met the criteria in Schedule 3 of the Migration Regulations 1994, or whether there were compelling reasons for these criteria to be waived, as required by clause 820.211(2)(d) of the Regulations.

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 "relevant day." The "relevant day" is defined by the Regulations and, in this case, was 1 May 2017. The applicant lodged her second partner visa application on 9 May 2017, eight days after this relevant day. The Tribunal also considered whether the applicant had manipulated her circumstances to create compelling reasons for a waiver of the Schedule 3 criteria.

The Tribunal found that the applicant had held a valid substantive visa when she lodged her first partner application. However, her first sponsor withdrew sponsorship on 31 March 2017, which was 16 days after the expiry of her student visa. This timing meant that the applicant had a period within which to lodge a partner visa application with her new partner before the "relevant day" of 1 May 2017. As the second application was lodged eight days after the relevant day, it was out of time. The Tribunal concluded that the applicant did not meet criterion 3001.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. This indicates that while the applicant did not meet the strict timeframes of criterion 3001, the Tribunal found compelling reasons for the waiver of the Schedule 3 criteria, allowing the application to proceed for further consideration by the Minister.