LOH (Migration)

This matter concerned an application for review of a decision to refuse a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant, a national of Malaysia, had entered Australia in January 2004 on a tourist visa which expired in April 2004, rendering him an unlawful non-citizen until he was granted a bridging visa in November 2016 in connection with his partner visa application. The sponsor, also a Malaysian national, had arrived in Australia in 2008, had a child from a previous relationship, and had since become an Australian citizen. The applicant and sponsor commenced a de facto relationship in October 2015, following the breakdown of the sponsor's previous relationship, and married in March 2017. The delegate determined that Schedule 3 criteria were applicable due to the applicant not holding a substantive visa for over 28 days prior to his application, and was not satisfied that compelling reasons existed to waive these criteria, considering the claimed relationship duration, the circumstances of not holding a substantive visa, or the potential impact on the sponsor and her son.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria in Schedule 3 of the Migration Regulations 1994, or if there were compelling reasons for these criteria not to be applied. Specifically, the Tribunal had to determine if the applicant's application was lodged within 28 days of his last substantive visa ceasing, as required by criterion 3001. If this criterion was not met, the Tribunal was required to consider whether the circumstances presented constituted "compelling reasons" sufficient to justify waiving the Schedule 3 requirements, a standard requiring reasons that are sufficiently convincing and circumstances that are sufficiently powerful to warrant such a waiver.

The Tribunal found that the applicant's last substantive visa expired on 6 April 2004, and his partner visa application was lodged on 22 November 2016. Applying the definition of the "relevant day" under criterion 3001(2), the Tribunal concluded that the application was not made within the required 28-day timeframe, and therefore the applicant did not satisfy criterion 3001. Consequently, the Tribunal was obliged to consider whether compelling reasons existed to waive the Schedule 3 criteria. The Tribunal noted that while the applicant argued his ability to work and pay tax would support the sponsor and her son, thereby benefiting the government, it did not find these arguments to constitute compelling reasons for waiving the Schedule 3 requirements. The Tribunal affirmed the decision not to grant the visa.