MOKTAN (Migration)

This matter concerned an application for review by Mr Robin Moktan of a decision by a delegate of the Minister for Immigration and Border Protection to refuse him a Partner (Temporary) (Class UK) visa. Mr Moktan had applied for the visa on 12 January 2015, based on his relationship with a sponsor. The delegate refused the application because Mr Moktan did not satisfy criterion cl.820.211 of Schedule 2 to the Migration Regulations 1994, specifically finding that he did not meet Item 3001 of Schedule 3 and that there were no compelling reasons for a waiver of this provision. The Tribunal, in previous iterations, had affirmed this decision, but these decisions were remitted back to the Tribunal by the Federal Circuit Court on two occasions.

The primary legal issues before the Tribunal were whether Mr Moktan met the Schedule 3 criteria, or alternatively, whether there were compelling reasons for those criteria to be waived. It was not disputed that Mr Moktan did not hold a substantive visa at the time of his application. Schedule 3 criteria, including criterion 3001, generally require an application to be lodged within 28 days of the cessation of the last substantive visa, unless compelling reasons exist for a waiver. Mr Moktan's immigration history indicated his last substantive visa, a Student visa, ceased in July 2010, and he subsequently became an unlawful non-citizen before lodging his Partner visa application in January 2015.

The Tribunal reasoned that Mr Moktan did not meet criterion 3001 of Schedule 3 as his application was lodged significantly outside the 28-day timeframe following the cessation of his Student visa. However, the Tribunal considered the requirement for compelling reasons for a waiver under cl.820.211(2)(d)(ii). The Tribunal noted that "compelling reasons" must be sufficiently convincing and powerful. Crucially, the Tribunal considered new evidence of the birth of an Australian citizen child to Mr Moktan and the sponsor in March 2020. The Tribunal concluded that the existence of this child constituted a compelling reason for not applying the Schedule 3 criteria, and therefore Mr Moktan met cl.820.211(2)(d)(ii).

Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa to the Minister for reconsideration, with the direction that Mr Moktan meets the criteria specified in cl.820.211(2)(d)(ii) for a Subclass 820 (Partner) visa. The Tribunal also acknowledged that previous decisions indicated potential issues with false or misleading information, which may require consideration by the delegate under Public Interest Criterion 4020.