Chen (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820. The applicant did not hold a substantive visa at the time of application and had been an unlawful non-citizen for two extended periods. The decision under review affirmed the refusal of the visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria in Schedule 3 of the Migration Regulations 1994, or if there were compelling reasons for those criteria to be waived. Specifically, the Tribunal considered criterion 3001, which requires an application to be lodged within 28 days of the relevant day. The applicant’s last substantive visa expired on 15 March 2011, and the Partner visa application was lodged on 30 December 2017, meaning criterion 3001 was not met.

The Tribunal then considered whether there were compelling reasons to waive the Schedule 3 criteria, as required by clause 820.211(2)(d). The Tribunal noted that "compelling reasons" are not defined but must be sufficiently convincing to warrant a waiver, citing *MZYPZ v MIAC* [2012] FCA 478 and *Babicci v MIMIA* (2005) 141 FCR 285. The Tribunal also acknowledged the principle from *Waensila v MIBP* [2016] FCAFC 32 that circumstances arising at any time, including after the application, can be considered. However, the Tribunal found that the applicant did not meet the Schedule 3 criteria and did not formally assess whether the relationship was genuine, as the focus of the original decision-maker and the Tribunal was on the Schedule 3 waiver.

The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, concluding that the applicant did not satisfy the criteria for the grant of the visa.