Park (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa by an applicant who did not hold a substantive visa at the time of application. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the criteria in Schedule 3 of the Migration Regulations 1994, or whether there were compelling reasons for these criteria to be waived. The applicant had arrived in Australia in May 2008 on a visitor visa which expired in August 2008, rendering him unlawful for nearly eight years until he lodged his Partner visa application.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which requires an application to be lodged within 28 days of the "relevant day". The Tribunal found that the applicant had not made his best endeavours to remain lawful, having been aware of his unlawful status for an extended period without a reasonable excuse, and therefore did not meet criterion 3001. Consequently, the Tribunal had to consider whether there were "compelling reasons" for not applying the Schedule 3 criteria, a concept requiring circumstances sufficiently convincing and powerful to warrant a waiver.

The Tribunal reasoned that while the applicant's personal circumstances were precarious, his excuse for remaining in Australia unlawfully due to financial difficulties after a holiday lacked merit, as there is a basic responsibility to have sufficient funds for return travel. The Tribunal noted that compelling reasons can arise at any time, including after the visa application is made. Ultimately, the Tribunal concluded that the applicant did not meet the Schedule 3 criteria and that there were no compelling reasons to waive them.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa to the Minister for reconsideration, with a direction that the applicant meets criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.