Chau (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, made by an applicant who was not the holder of a substantive visa at the time of application. The applicant and the sponsor, an Australian citizen, had married in January 2016, and the visa application was lodged shortly thereafter. The Tribunal was required to determine whether the applicant met the criteria in Schedule 3 of the Migration Regulations 1994, or if there were compelling reasons for these criteria not to apply.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of Schedule 3, specifically criterion 3001, or if compelling reasons existed to waive these requirements. The applicant had previously held a student visa which was cancelled in July 2012 due to poor academic performance, and she remained in Australia unlawfully for almost four years before meeting the sponsor and applying for the partner visa. Criterion 3001 requires an application to be lodged within 28 days of the relevant day, which in this case was the day after the applicant's student visa was cancelled.

The Tribunal found that the applicant did not satisfy criterion 3001 as her partner visa application was lodged significantly later than 28 days after her last substantive visa ceased to be in effect. However, the Tribunal considered the compelling reasons for not applying the Schedule 3 criteria, noting the strong degree of companionship and emotional support within the genuine, long-term relationship, and the severe psychological and mental distress the applicant's departure from Australia would cause the sponsor, particularly given his history of estrangement from his daughter. The Tribunal concluded that compelling reasons existed to waive the Schedule 3 requirements.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, signifying that compelling reasons existed for not applying the Schedule 3 criteria. The Minister was to then consider the remaining criteria for the grant of the subclass 820 visa.