2216826 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, which had been remitted to the Tribunal by the Federal Circuit and Family Court. The central dispute revolved around whether the applicant met Schedule 3 criteria, specifically criterion 3001, which requires an application to be made within 28 days of the last substantive visa ceasing, or if there were compelling reasons for these criteria not to be applied.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the Schedule 3 criteria for the Partner visa, or if compelling reasons existed to waive these criteria. This involved assessing whether the application was lodged within the prescribed 28-day period following the cessation of the applicant's last substantive visa, which was a transit visa that expired on 27 May 2015. The applicant’s partner visa application was lodged on 25 January 2016.

The Tribunal found that the applicant did not hold a substantive visa at the time of application and that the application was lodged significantly more than 28 days after the cessation of their last substantive visa. Consequently, the applicant did not satisfy criterion 3001 of Schedule 3. However, the Tribunal considered the evidence presented, including statutory declarations, which indicated a long-standing relationship and the applicant's role as a primary male figure for the sponsor's grandchild. The Tribunal concluded that the decision to refuse the visa had been made without a full hearing of these compelling reasons.

The Tribunal remitted the application back to the Department for reconsideration, with a direction that the applicant met criterion cl.820.211(2)(d) of Schedule 2 to the Regulations, acknowledging the compelling reasons for not applying the Schedule 3 criteria in this instance.