CHAN (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820 (Spouse), made by the applicant, who had remained in Australia unlawfully for approximately six years after her working holiday visa ceased. The applicant applied for the visa more than 28 days after her last substantive visa expired. The sponsor was a Malaysian national who had previously been married and had two children from that marriage residing in Malaysia. The applicant and sponsor met in 2013, commenced living together in 2014, and married in 2017. The core dispute was whether the applicant met the criteria in Schedule 3 of the Migration Regulations 1994, or if there were compelling reasons for those criteria not to be applied.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria set out in Schedule 3 of the Migration Regulations 1994, specifically criterion 3001, which requires an application to be lodged within 28 days of the cessation of the last substantive visa. If the applicant did not meet these criteria, the Tribunal was required to determine if there were compelling reasons to waive their application. The Tribunal noted that the applicant had not held a substantive visa since her working holiday visa expired in November 2011 and that her application for the Partner visa was lodged in June 2017, significantly exceeding the 28-day timeframe.

The Tribunal reasoned that the applicant failed to satisfy criterion 3001 as her application was lodged more than six years after her last substantive visa ceased. While acknowledging the applicant's long-standing relationship with the sponsor and the potential impact of COVID-19 travel restrictions, the Tribunal found that these factors did not constitute compelling reasons to dispense with the Schedule 3 criteria. The Tribunal was not bound by departmental policy and ultimately concluded, after considering all the evidence, that there were no compelling reasons, individually or collectively, to waive the Schedule 3 requirements.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, subclass 820, as she did not meet the necessary criteria.