Chen (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820) by an applicant who did not hold a substantive visa at the time of application. The primary issue before the Tribunal was whether the applicant met the Schedule 3 criteria, and if not, whether there were compelling reasons to waive these criteria. The applicant had entered Australia in 1997 on a business visa which ceased in August 1997. Subsequent visa applications were refused or found invalid, leading to the applicant residing unlawfully in Australia for approximately seventeen years.

The Tribunal was required to determine if the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which mandates that an application be lodged within 28 days of the "relevant day." The Tribunal found that the applicant's last substantive visa, a subclass 456 Business (Short Stay) visa, ceased on 8 August 1997. This date was determined to be the "relevant day" for the purposes of subclause 3001(2)(c)(i) of Schedule 3.

The Tribunal reasoned that as the applicant's application was lodged significantly later than 28 days after the cessation of their last substantive visa, they did not meet criterion 3001. Consequently, the applicant failed to satisfy the Schedule 3 criteria. The Tribunal concluded that there were no compelling reasons presented that would justify waiving these criteria.

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