Nurdiana (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (subclass 820) by an Indonesian national, Nurdiana, who claimed to be in a de facto relationship with an Australian citizen. The core dispute revolved around whether the applicant met the Schedule 3 criteria of the Migration Regulations 1994, or if there were compelling reasons to waive these criteria. The applicant had remained in Australia unlawfully for approximately 11 months after her last substantive visa expired before applying for the visa under review.

The legal issues before the court were twofold: firstly, whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001 which requires an application to be lodged within 28 days of the last substantive visa ceasing to be in effect; and secondly, if she did not satisfy these criteria, whether there were compelling reasons for the Minister to exercise discretion not to apply them. The court was required to consider the definition of "compelling reasons" as interpreted by case law, which suggests circumstances that would "force or drive the decision-maker irresistibly" and be sufficiently powerful to justify waiving the criteria, often in the context of preventing hardship to applicants who would otherwise need to leave Australia to apply.

The court found that the applicant did not meet the Schedule 3 criteria because her application was lodged approximately 11 months after her last substantive visa expired on 18 February 2017, significantly exceeding the 28-day timeframe stipulated by criterion 3001. Regarding the waiver of these criteria, the court considered the applicant's arguments, including the longstanding and genuine nature of her relationship, the potential hardship if separated from her partner, her work in a sector with skills shortages, and her sponsor's recent surgery. However, the court determined that these factors, while noted, did not constitute "compelling reasons" that would irresistibly drive a decision-maker to waive the Schedule 3 requirements. The court emphasised that the applicant's decision to remain in Australia unlawfully for an extended period was a conscious one, and this fact weighed against finding compelling reasons for the waiver.

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