Abdelsayed (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant sought review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of the visa. The core of the dispute revolved around the applicant's failure to hold a substantive visa at the time of application and the subsequent application of Schedule 3 criteria under the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant met the Schedule 3 criteria, and if not, whether there were compelling reasons to waive the application of those criteria. The applicant had not entered Australia on a Subclass 995 or special purpose visa, meaning the Schedule 3 requirements were engaged. The Tribunal was required to consider the specific criteria outlined in Schedule 3, including whether the applicant's failure to hold a substantive visa was due to factors beyond their control and whether there were compelling reasons for granting the visa.

The Tribunal's reasoning focused on the applicant's immigration history, which demonstrated a prolonged period without a substantive visa and multiple unsuccessful visa applications and reviews. While acknowledging some emotional and psychological hardship, the Tribunal found that these circumstances did not constitute compelling reasons to waive the Schedule 3 criteria. The applicant had not satisfied the requirements of Schedule 3, and the Tribunal concluded that there were no compelling reasons to depart from the general rule that these criteria must be met.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa.