Li (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820) by an applicant who did not hold a substantive visa at the time of application. The applicant had entered Australia in 2004 on a student visa, which ceased in 2008. He subsequently remained in Australia unlawfully, having been incarcerated for violence and gang-related offences. The applicant claimed to have met and committed to a relationship with the sponsor in 1998 and 2013 respectively, marrying in 2015. The core dispute revolved around whether the applicant met the Schedule 3 criteria, or if there were compelling reasons for these criteria to be waived.

The legal issues before the Tribunal were whether the applicant's failure to hold a substantive visa at the time of application was due to circumstances beyond his control, and whether there were compelling reasons justifying the grant of the visa, thereby allowing him to meet criterion 3004 of Schedule 3. The Tribunal was required to consider the applicant's criminal and immigration history, the sponsor's mental health condition, and the degree of hardship the parties might experience.

The Tribunal affirmed the decision not to grant the visa. While acknowledging the challenging circumstances presented by the COVID-19 pandemic and sympathising with the sponsor's concerns, the Tribunal found that the applicant's history demonstrated a total disregard for Australian law. Although the Tribunal accepted that the applicant might have matured and acknowledged the potential hardship of separation, it concluded that these factors did not constitute compelling reasons not to apply the Schedule 3 criteria. The Tribunal was not satisfied that the applicant met criterion 3004, nor that there were compelling reasons for not applying the Schedule 3 criteria generally. Consequently, the applicant did not satisfy the criteria for the grant of the visa.