1837889 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an Iranian national sponsored by an Australian citizen. The core dispute revolved around the applicant's failure to lodge her application within 28 days of her last substantive visa expiring, which triggered the application of Schedule 3 criteria under the Migration Regulations 1994. The applicant sought to demonstrate compelling reasons for these criteria to be waived.

The legal issues before the Tribunal were whether the applicant met the criteria set out in Schedule 3 of the Migration Regulations 1994, and if not, whether there were compelling reasons for those criteria to be waived. Specifically, the Tribunal had to determine if the applicant satisfied criterion 3001, which requires an application to be lodged within 28 days of the relevant day, and if not, to assess the evidence presented to establish compelling reasons for a waiver.

The Tribunal found that the applicant did not satisfy criterion 3001 as her application was lodged significantly more than 28 days after her last substantive visa expired. In considering whether there were compelling reasons for not applying the Schedule 3 criteria, the Tribunal noted that such reasons must be sufficiently convincing to warrant a waiver. The applicant had provided evidence of fear for her safety in her home country, emotional and financial dependence on her sponsor, and significant hardship if separated. However, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister to assess the remaining criteria for the Subclass 820 visa, directing that the applicant met criterion cl.820.211(2)(d)(ii) of Schedule 2.