Marisa (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs not to grant the applicant a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant was not the holder of a substantive visa at the time of application. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the criteria in Schedule 3 of the Migration Regulations 1994, or whether there were compelling reasons for the criteria to be waived.

The primary legal issue before the Tribunal was whether the applicant satisfied Schedule 3 criteria, specifically criterion 3001, which requires an application to be lodged within 28 days of the "relevant day". The Tribunal also considered whether there were compelling reasons to waive these criteria if they were not met. The applicant had arrived in Australia on 23 October 2013 on a visitor visa which expired on 23 November 2013. She subsequently applied for a student visa, which was refused. She then held bridging visas on two occasions and was an unlawful non-citizen for periods before lodging the current application on 12 August 2016, when she was not the holder of any valid visa.

The Tribunal reasoned that the "relevant day" for the purpose of criterion 3001 was the date her last substantive visa ceased, which was 23 November 2013. As the application was lodged on 12 August 2016, significantly more than 28 days had passed, meaning the applicant did not satisfy criterion 3001. Having found that the applicant did not meet the Schedule 3 criteria, the Tribunal then considered whether there were compelling reasons for not applying them, but the decision indicates this consideration did not lead to a favourable outcome for the applicant.

The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.