Chi (Migration)

This matter concerned a visa applicant, a citizen of China, who first arrived in Australia in 2008 and held various visas until her last substantive visa ceased on 15 March 2010. She subsequently remained in Australia as an unlawful non-citizen for a significant period before applying for a Subclass 820 (Partner) visa in November 2016. The sponsor, who later became an Australian citizen, had also been an unlawful non-citizen for a period before obtaining permanent residency. The parties married in 2014 and had two children, one of whom was an Australian citizen. The Administrative Appeals Tribunal (AAT) considered the applicant's eligibility for the visa, specifically whether she met the Schedule 3 criteria or if there were compelling reasons to waive them.

The primary legal issue before the Tribunal was whether there were compelling reasons to waive the Schedule 3 criteria, as the applicant did not hold a substantive visa at the time of her application. This required an assessment of whether the applicant satisfied criteria 3001, 3003, and 3004 of Schedule 3 to the Migration Regulations 1994. It was not disputed that the applicant failed to meet criterion 3001, which requires an application to be lodged within 28 days of the relevant day, as her application was lodged significantly later than this timeframe.

The Tribunal acknowledged that the applicant had been an unlawful non-citizen for a substantial period. However, it also considered the circumstances of the relationship, the birth of two children, one of whom was an Australian citizen, and the sponsor's eventual citizenship. The Tribunal found that the applicant did not meet criterion 3001, but it remitted the matter for reconsideration by the Minister, directing that the applicant met criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. This indicated that while the applicant failed to meet a specific Schedule 3 criterion, the Tribunal considered there were sufficient grounds to proceed with the assessment of other criteria for the visa.