Ghimire (Migration)

This matter concerned an appeal by an applicant against the Tribunal's decision to affirm the refusal of a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant had not held a substantive visa at the time of lodging the application, which meant that Schedule 3 criteria of the Migration Regulations 1994 applied. The central dispute was whether the applicant met these Schedule 3 criteria, or if there were compelling reasons for those criteria to be waived.

The legal issues before the Tribunal were whether the applicant satisfied the Schedule 3 criteria, specifically clauses 3001, 3003, and 3004, or whether compelling reasons existed for the Minister to exercise discretion and not apply these criteria. The applicant's history indicated a series of visa applications and refusals, and periods of unlawful status in Australia, culminating in the current application for a Partner visa.

The Tribunal affirmed the decision not to grant the visa. It found that the applicant did not meet the Schedule 3 criteria, and no compelling reasons were established to waive their application. The Tribunal noted that the applicant had not provided evidence to suggest that their failure to hold a substantive visa was due to factors beyond their control, nor had they demonstrated compelling reasons for the visa to be granted despite not meeting the Schedule 3 requirements. The Tribunal concluded that the decision under review should be affirmed.