2002798 (Migration)

This matter concerned 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 before the Tribunal was whether the applicant met the Schedule 3 criteria, or if there were compelling reasons for those criteria not to be applied.

The Tribunal was required to determine if the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which mandates that an application be lodged within 28 days of the relevant day, defined as the last day the applicant held a substantive visa. If the applicant did not meet these criteria, the Tribunal then had to consider whether compelling reasons existed to waive them. The Tribunal noted that the applicant did not hold a substantive visa at the time of application and that her last substantive visa, a Subclass 600 Visitor visa, expired over four years prior to her Partner visa application, meaning she failed to meet criterion 3001.

In considering whether compelling reasons existed to waive the Schedule 3 criteria, the Tribunal found the applicant to be untruthful. The applicant had consistently presented a narrative of her relationship with the sponsor, claiming they met in a Russian restaurant, a story she maintained to the Department, the Tribunal, and medical professionals. However, during the hearing, she acknowledged this narrative was false and that her actual reason for contacting the sponsor was to seek employment, as stated in her 2015 police statements. The Tribunal applied the legal principles that compelling reasons must be sufficiently powerful to "force or drive the decision-maker irresistibly" and that such circumstances can arise at any time. Given the applicant's lack of credibility regarding the foundational aspects of her relationship claim, the Tribunal concluded there were no compelling reasons to waive the Schedule 3 criteria.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa, finding that she did not satisfy the criteria for its grant.