Li (Migration)

This matter concerned an application for review by the applicant, Ms Li, of a decision by the Administrative Appeals Tribunal (AAT). The AAT had affirmed a delegate's decision to cancel Ms Li's Student (subclass 572) visa. Ms Li had subsequently lodged a Partner (subclass 820/801) visa application while in Australia, but the Tribunal was reviewing the circumstances surrounding this application and its potential grant.

The primary legal issues before the Tribunal were whether Ms Li met the Schedule 3 criteria for her Partner visa application, and if not, whether a waiver of those criteria was applicable. Additionally, the Tribunal had to consider whether Ms Li satisfied the requirements for the grant of the Partner (subclass 820) visa, specifically clause 820.411, which requires the applicant to be in Australia at the time of the visa grant.

The Tribunal noted that Ms Li had confirmed she was no longer in Australia and was residing in her native Taiwan. She had also lodged a separate offshore Partner (subclass 309) visa application. The Tribunal reasoned that because Ms Li had departed Australia and was pursuing a migration outcome offshore, the waiver provisions for Schedule 3 criteria were not applicable. Furthermore, as Ms Li was offshore and did not hold a visa permitting her return to Australia, she could not satisfy clause 820.411, which mandates that the applicant be in Australia for the grant of the subclass 820 visa.

Consequently, the Tribunal affirmed the application under review, finding that Ms Li did not meet the necessary Schedule 3 requirements, nor the alternative waiver provisions, and also failed to satisfy the condition of being in Australia for the grant of the subclass 820 visa.