Klubnum (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (subclass 820) by an applicant born in Thailand. The applicant had arrived in Australia on a student visa which expired on 15 March 2016. She subsequently lodged her partner visa application on 31 March 2016, resulting in a period of unlawful status for 22 days before being granted a bridging visa. The applicant claimed her period of overstay was inadvertent and beyond her control due to reliance on a Thai government agency for visa and travel arrangements as a scholarship recipient. The decision under review was made by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant ceased to hold a substantive visa due to circumstances beyond her control, and if not, whether there were compelling reasons to waive the Schedule 3 criteria. Specifically, the Tribunal had to determine if the applicant met the requirements of Schedule 3 of the Migration Regulations 1994, which apply to applicants who do not hold a substantive visa at the time of application, unless compelling reasons exist for their waiver. The Tribunal considered criteria 3001 and 3004 of Schedule 3.

The Tribunal found that the applicant satisfied criterion 3001 as her partner visa application was lodged within 28 days of her student visa expiring. However, regarding criterion 3004, the Tribunal determined that the applicant had not demonstrated that her failure to hold a substantive visa was due to factors beyond her control. While the applicant claimed reliance on a government agency, the Tribunal was not satisfied that this agency's actions constituted circumstances beyond her control in the context of the regulations. Consequently, the Tribunal concluded that there were no compelling reasons to waive the Schedule 3 criteria.

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