1828581 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (subclass 820) made by an applicant who did not hold a substantive visa at the time of lodgement. The applicant’s sponsor was incarcerated for drug importation offences, and the applicant claimed to provide emotional support. The applicant also relied on previous claims of persecution, which had been rejected, and the COVID-19 outbreak in Nigeria. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria for the visa application, or if there were compelling reasons for these criteria to be waived. Specifically, the Tribunal had to determine if the applicant met criterion 3001, which requires an application to be lodged within 28 days of the last day a substantive visa was held, and if not, whether compelling reasons existed to waive this requirement.

The Tribunal found that the applicant did not satisfy criterion 3001 as his application was lodged more than two years after his last substantive visa expired in July 2014. The Tribunal then considered whether there were compelling reasons to waive this criterion. It noted that compelling reasons must be sufficiently convincing and powerful. While the applicant had remained lawfully in Australia on bridging visas throughout his previous visa applications, the Tribunal held that this fact alone did not constitute a compelling reason for waiving criterion 3001, as the criterion specifically relates to the timing of the application and not the applicant's immigration status.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, as the applicant failed to satisfy the necessary criteria and no compelling reasons were found to waive them.