Chaichana (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820) made by the applicant, Mr Chaichana. The applicant had applied for the visa more than 28 days after the cancellation of his last substantive visa, which was a student visa. His student visa had been cancelled due to non-payment of fees, and a bridging visa was granted pending his review of that cancellation decision. The review affirmed the cancellation of the student visa. The primary issue before the Tribunal was whether there were compelling reasons for not applying the Schedule 3 criteria, which an applicant must satisfy if they do not hold a substantive visa at the time of application.

The Tribunal was required to determine whether the applicant met the Schedule 3 criteria, or if compelling reasons existed to waive these criteria. Specifically, the Tribunal considered criterion 3001, which requires an application to be lodged within 28 days of the "relevant day." The applicant's visa history indicated he arrived in Australia on 15 September 2013 on a student visa, which was cancelled on 14 June 2016. He remained in Australia on bridging visas while seeking review of the cancellation, which was affirmed on 9 March 2017. The partner visa application was lodged on 11 July 2017, significantly outside the 28-day timeframe following the cessation of his substantive visa.

The Tribunal found that the applicant did not meet criterion 3001 as his application was lodged more than 28 days after the relevant day, which was the date his student visa ceased to be in effect. While the applicant provided information regarding the length and genuineness of his relationship, his financial circumstances, the sponsor's health, and the impact of COVID-19 travel restrictions, these factors were not considered sufficient to establish compelling reasons for waiving the Schedule 3 criteria. The Tribunal noted that it was restricting its review to the matters decided by the delegate and accepted, for the purpose of assessing the waiver of Schedule 3 criteria, that the applicant was in a genuine relationship with the sponsor. However, the failure to meet the time limit under criterion 3001 was determinative.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, as he did not satisfy the criteria for the grant of the visa due to his failure to meet the lodgement timeframe stipulated by Schedule 3.