Morgado Marcelino (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820) by an applicant who was validly married to an Australian citizen sponsor. The primary dispute revolved around the applicant's failure to hold a substantive visa at the time of application and whether this failure meant they did not meet criterion 3001 of Schedule 3 of the Migration Regulations 1994. The Tribunal was required to determine if the applicant met the Schedule 3 criteria or if there were compelling reasons for those criteria not to be applied.

The Tribunal considered whether the applicant satisfied the requirements of cl 820.211 and specifically criterion 3001 of Schedule 3. This criterion requires an application to be validly made within 28 days after the "relevant day," which is defined by the regulations based on when the applicant last held a substantive visa or entered Australia unlawfully. The delegate had concluded that the applicant did not meet criterion 3001 because their last substantive visa ceased more than 28 days before the application was lodged. The Tribunal also had to assess if there were compelling reasons to dispense with the Schedule 3 criteria, which are generally applicable to applicants who do not hold a substantive visa at the time of application.

The Tribunal found that the delegate's assessment that the applicant did not meet criterion 3001 was correct, as the applicant had not held a substantive visa within the prescribed 28-day period. However, the Tribunal determined that the matter should be remitted for reconsideration. The Tribunal directed that the applicant be taken to meet criteria cl 820.211 and cl 820.221 of Schedule 2 to the Regulations, implying that further consideration of the compelling reasons for not applying Schedule 3 criteria, or other aspects of the application, was warranted.