1826149 (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa (subclass 820). The applicant sought review of a decision not to grant the visa. The central issue was whether the applicant met the Schedule 3 criteria, which apply when an applicant does not hold a substantive visa at the time of application, or if there were compelling reasons for these criteria not to be applied.

The Tribunal was required to determine if the applicant satisfied Schedule 3 criteria 3001, 3003, and 3004, or if compelling reasons existed to waive these requirements. Specifically, criterion 3001 mandates that the visa application must be lodged within 28 days of the applicant's last substantive visa expiring. The Tribunal also had to consider the meaning of "compelling reasons" in the context of waiving these criteria, drawing on established case law.

The Tribunal found that the applicant did not satisfy criterion 3001 because their last substantive visa expired on 23 February 2013, more than four years before the current application was lodged. Consequently, the Tribunal considered whether there were compelling reasons to waive the Schedule 3 criteria. Applying the principles from cases such as *MZYPZ v MIAC* and *Babicci v MIMIA*, the Tribunal assessed the applicant's circumstances. Despite the applicant's previous unsuccessful protection visa application and periods as an unlawful non-citizen, the Tribunal found no evidence to suggest the applicant would face difficulties or harm if required to return to Malaysia. The Tribunal noted the applicant's father's successful business in Malaysia and the availability of family support, concluding that these circumstances did not constitute compelling reasons to waive the Schedule 3 criteria.

Therefore, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa.