1814675 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant who had remained in Australia unlawfully for over eight years after their student visa was cancelled. The applicant did not meet the requirement to apply within 28 days of their last substantive visa ceasing to be in effect, as stipulated by criterion 3001 of Schedule 3 to the Migration Regulations 1994. The Administrative Appeals Tribunal was required to determine whether there were compelling reasons for not applying these Schedule 3 criteria.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria for the Partner (Temporary) (Class UK) visa, Subclass 820, or if there were compelling reasons for these criteria to be waived. Specifically, the Tribunal had to consider criterion 3001, which requires an application to be lodged within 28 days of the "relevant day," defined by the Regulations. The applicant's student visa was cancelled on 21 April 2009, and the partner visa application was lodged online on 27 October 2017, meaning the application was not made within the prescribed 28-day period.

The Tribunal found that the applicant did not satisfy criterion 3001 of Schedule 3. However, it then considered whether there were compelling reasons for not applying these criteria, noting that such reasons must be sufficiently convincing and powerful to warrant a waiver. While the Tribunal acknowledged the applicant's lengthy unlawful stay, it did not make a finding on whether compelling reasons existed in this specific instance. Instead, the Tribunal remitted the application back to the Department for reconsideration, directing that the applicant be taken to meet criterion 820.211(2)(d) of Schedule 2 to the Regulations.