1916247 (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant sought to have Schedule 3 criteria waived, which typically requires an applicant to apply within 28 days of their last substantive visa expiring. The applicant had arrived in Australia in April 2011 on a tourist visa that expired in July 2011, and remained in Australia unlawfully until applying for a Protection visa in July 2017, which was subsequently deemed invalid. The applicant then applied for the Partner visa in May 2018.

The primary legal issue before the Tribunal was whether there were compelling reasons to waive the Schedule 3 criteria, given the applicant's failure to apply for the Partner visa within the prescribed timeframe after his substantive visa expired. The Tribunal was required to assess the applicant's claims regarding the unintentional nature of his overstay, the duration and nature of his relationship with the sponsor, the sponsor's health issues, and the impact of COVID-19 and international relations.

The Tribunal found that the applicant's claim of unintentionally overstaying his visa lacked credibility. Despite arriving in 2011, the applicant remained in Australia unlawfully for a significant period, failing to take steps to regularise his status even after meeting his sponsor in 2013 and marrying her in 2016. The Tribunal noted that visa information is widely available and the onus is on the applicant to understand and comply with visa conditions. The Tribunal also determined that the existence of a genuine and continuing relationship, while a requirement for the visa itself, was not, in itself, a compelling reason to waive the Schedule 3 criteria. The Tribunal did not attribute weight to the claims of being tricked by a migration agent or the impact of COVID-19 and international relations as compelling reasons for the waiver.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, finding that the applicant had not demonstrated compelling reasons to waive the Schedule 3 criteria.