Lin (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant who did not hold a substantive visa at the time of application. The dispute centred on whether the applicant met the Schedule 3 criteria, or if there were compelling reasons for these criteria to be waived. The decision was made by Senior Member Justin Owen of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which requires an application to be lodged within 28 days of the "relevant day". If the applicant did not satisfy this criterion, the Tribunal had to determine if there were compelling reasons for the criteria to be waived, as permitted by clause 820.211(2)(d) of the Regulations. The applicant had been in Australia without a substantive visa for over six and a half years before lodging the Partner visa application.

The Tribunal found that the applicant last held a substantive visa on 25 August 2010, which was therefore the "relevant day" for the purposes of criterion 3001. As the application was lodged more than six and a half years after this date, the applicant did not satisfy criterion 3001. However, the Tribunal noted that the applicant's circumstances, including being the primary care provider for her Australian citizen partner and child, requiring pre- and post-natal care due to a late-term pregnancy, and having access to childcare services, were relevant to the assessment of compelling reasons for a waiver under criterion 3003 or 3004.

Given the findings, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met criterion cl.820.221(2)(d) of Schedule 2 to the Regulations. This indicated that while the Schedule 3 criteria were not met within the prescribed timeframe, the matter was to proceed to further assessment, likely concerning the waiver provisions and other substantive visa requirements.