Pham (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa (Subclass 820) made by an applicant who did not hold a substantive visa at the time of application. The central issue was whether the applicant met the Schedule 3 criteria, or if there were compelling reasons for these criteria to be waived. The applicant had arrived in Australia in 2013 on a student visa, which was subsequently cancelled in 2015, leaving the applicant in Australia unlawfully. The applicant applied for the Partner visa in 2017 while detained, and was granted a Bridging E visa.

The Tribunal was required to determine if the applicant satisfied Schedule 3 criteria, specifically criterion 3001, which mandates that an application be lodged within 28 days of the "relevant day." The Tribunal found that the applicant's last substantive visa expired on 30 July 2015, which constituted the "relevant day" for the purposes of criterion 3001. As the Partner visa application was lodged significantly later than 28 days after this date, the applicant did not meet criterion 3001. The Tribunal also considered whether compelling reasons existed to waive this criterion, as permitted by clause 820.211(d)(ii) of the Migration Regulations 1994.

In its reasoning, the Tribunal noted that the applicant had remained in Australia unlawfully for an extended period after the cancellation of his student visa. While the applicant argued for compelling reasons for a waiver, including a long-standing relationship, providing support to his sponsor during studies, financial hardship associated with lodging a new offshore application, temporary separation, and COVID-19 risks in Vietnam, these were not found to be sufficiently compelling to override the failure to meet the mandatory timeframes of Schedule 3 criterion 3001. The Tribunal affirmed the decision not to grant the visa.