Hassan (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought before the Administrative Appeals Tribunal by an applicant who did not hold a substantive visa at the time of application. The sponsor of the applicant had significant illnesses, and the Tribunal considered whether compelling reasons existed to waive certain requirements due to the strong degree of companionship and emotional support provided by the applicant.

The primary legal issue before the Tribunal was whether the applicant met the Schedule 3 criteria, or if there were compelling reasons for these criteria to be waived, as required by clause 820.211(2)(d) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant satisfied criterion 3001 of Schedule 3, which generally requires an application to be lodged within 28 days of a specified "relevant day." The applicant had entered Australia in February 2010 on a Student visa, which ceased in January 2011, and remained in Australia as an unlawful non-citizen until lodging the Partner visa application in 2016.

The Tribunal found that the applicant had not held a substantive visa since January 2011 and was therefore an unlawful non-citizen at the time of the Partner visa application in 2016. The Tribunal was not satisfied that the applicant met the requirements of clause 820.211(d)(i) or criterion 3001 of Schedule 3, as there was no evidence to suggest the applicant met any of the exceptions related to entry permits, illegal entry, criminal justice visas, or cancellation of substantive visas. However, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister, directing that the applicant met criterion 820.211(2)(d)(ii) of Schedule 2.