Namsombun (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by the applicant, Ms. Namsombun. The dispute arose because the application was lodged more than 28 days after her last substantive visa expired, triggering the application of Schedule 3 criteria. The applicant had been in Australia on a bridging visa pending a review of a refused student visa application.

The primary legal issue before the Tribunal was whether there were compelling reasons for not applying the Schedule 3 criteria, specifically concerning the applicant’s failure to apply for the partner visa within the prescribed timeframe after her substantive visa ceased. The Tribunal also considered the applicant's claim that she received inadequate advice from her former migration agent regarding the Schedule 3 requirements and her financial situation.

The Tribunal acknowledged that the applicant's migration agent's registration was later cancelled, raising the possibility of inadequate advice. However, it noted that the onus is on the applicant to understand visa requirements. Despite this, the Tribunal found that the applicant and her sponsor's long-term relationship, coupled with their dire financial circumstances, constituted compelling reasons not to apply Schedule 3. The applicant had spent significant funds on visa applications, was unable to work due to her bridging visa conditions, and was financially supported by her sponsor, whose income had been minimal. Requiring the applicant to depart Australia to lodge a new application would impose substantial financial burdens, including travel, new application fees, and maintaining two households, potentially forcing the sponsor to access superannuation intended for retirement.

Consequently, the Tribunal determined that compelling reasons existed for not applying the Schedule 3 criteria. The matter was remitted to the Minister for reconsideration of the remaining criteria for the Subclass 820 visa, with the direction that the applicant met the criterion under cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.