Dinh (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, before the Administrative Appeals Tribunal. The applicant sought review of a decision concerning his eligibility for the visa. The central issue was whether the applicant met the Schedule 3 criteria, which apply to applicants who do not hold a substantive visa at the time of application, or whether there were compelling reasons for these criteria to be waived.

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 'relevant day' was defined as the last day the applicant held a substantive visa. The Tribunal found that the applicant's last substantive visa, a Student visa, expired in November 2011, and he remained in Australia as an unlawful non-citizen for almost five years before lodging his current application. Consequently, the application was not lodged within the prescribed 28-day period, meaning the applicant did not satisfy criterion 3001.

As the applicant failed to meet the Schedule 3 criteria, the Tribunal then considered whether there were compelling reasons to waive these requirements. The Tribunal noted that 'compelling reasons' must be sufficiently convincing and powerful to justify waiving the criteria. In this instance, the applicant had a poor immigration history, having remained unlawfully in Australia for an extended period, suggesting a disregard for immigration laws. Furthermore, the applicant had committed criminal offences in Australia, raising concerns about his character. The Tribunal concluded that these circumstances cast doubt on the applicant's genuine intentions and character, and therefore, there were no compelling reasons to waive the Schedule 3 criteria.

Given these findings, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, indicating that the reconsideration should focus on other aspects of the visa application.