NGUYEN (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant did not hold a substantive visa at the time of application and therefore was required to meet Schedule 3 criteria, or demonstrate compelling reasons for a waiver. The applicant failed to meet criterion 3001 of Schedule 3, as their application was lodged more than 28 days after their last substantive visa expired. The Tribunal was therefore required to consider whether there were compelling reasons to waive this requirement.

The legal issue before the Tribunal was whether the applicant met the Schedule 3 criteria for the visa, or if there were compelling reasons for these criteria to be waived. Specifically, the Tribunal had to determine if the applicant's failure to lodge the application within the prescribed timeframe under criterion 3001 could be excused due to compelling circumstances.

The Tribunal found that the applicant did not meet criterion 3001 because the application was lodged significantly outside the 28-day period following the expiry of their last substantive visa. However, the Tribunal acknowledged that clause 820.211(2)(d)(ii) of the Migration Regulations 1994 allows for this criterion to be waived if compelling reasons exist. The applicant explained their prolonged period of unlawful status by citing youth, immaturity, shame, and fear of being sent home, which prevented them from contacting the Department. The Tribunal accepted that the applicant was aware of their unlawful status.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, with a direction that the applicant meets the specified criteria for a Subclass 820 (Partner (Temporary)) visa.