1805730 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (subclass 820) by a Nigerian citizen, referred to as [the applicant], who was in a relationship with an Australian citizen, [Ms A]. The applicant's visa application was made more than 28 days after the expiry of his last substantive visa, which was a Visitor visa that ceased in July 2014. Consequently, Schedule 3 criteria of the Migration Regulations 1994 were engaged, requiring the applicant to satisfy specific criteria unless compelling reasons existed not to apply them. The case was before the Tribunal for reconsideration after a previous remittal by the Federal Circuit Court.

The primary legal issue before the Tribunal was whether there were compelling reasons not to apply the Schedule 3 criteria to the applicant's visa application, given that he did not hold a substantive visa at the time of lodgement and had failed to meet the 28-day application window stipulated by Item 3001 of Schedule 3. The Tribunal was required to determine if the applicant's circumstances constituted "compelling reasons" as contemplated by clause 820.211(2)(d)(ii) of the Regulations, which allows for an exception to the Schedule 3 requirements.

The Tribunal reasoned that the applicant had maintained lawful visa status throughout his time in Australia by holding a series of bridging visas, and had diligently pursued his applications through various administrative and judicial stages. It noted that significant delays had occurred due to the increasing volume of applications and, more recently, COVID-19 travel restrictions, which were beyond the applicant's control. The Tribunal found that these delays, coupled with the applicant's consistent compliance with migration law and his pursuit of administrative law rights, distinguished his situation from that of an ordinary offshore applicant. Therefore, the Tribunal concluded that there were compelling reasons not to apply the Schedule 3 criteria, as penalising the applicant by requiring him to depart Australia and reapply offshore would be unduly harsh given the circumstances.

The Tribunal determined that the applicant met clause 820.211(2)(d)(ii) and that there were compelling reasons for not applying the Schedule 3 criteria. However, the Tribunal did not make a decision on whether the applicant met the criterion of being the spouse of Ms A under clause 820.211(2)(a), as this was the central issue of the application and to do so would usurp the role of the original delegate and deny the applicant merits review of that specific decision. Accordingly, the Tribunal remitted the matter for reconsideration.