Shaikh (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa by an applicant who had not held a substantive visa since 15 July 2007. The applicant had remained in Australia as an unlawful non-citizen from 23 October 2008 until 24 October 2011, when he was granted a Bridging E visa. The core dispute revolved around whether the applicant met the Schedule 3 criteria, or if there were compelling reasons for these criteria not to apply. The court was required to determine if the applicant satisfied the Schedule 3 criteria, or if compelling reasons existed to waive them, specifically in relation to criterion 3001 which requires an application to be lodged within 28 days of the last substantive visa ceasing.

The court considered the applicant's migration history, including the cessation of his last substantive visa on 15 July 2007 and his subsequent application for the visa under review on 24 October 2011. This meant the application was lodged significantly outside the 28-day timeframe stipulated by criterion 3001. The court noted that while the genuineness of the relationship, the length of the relationship, financial circumstances, and the best interests of a child are relevant considerations for partner visas, they do not, in themselves, constitute "compelling reasons" for not applying Schedule 3 criteria. The court found that the applicant did not satisfy criterion 3001.

Ultimately, the Tribunal remitted the application for reconsideration. The direction was that the applicant meets criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, indicating that the matter should proceed to further assessment of the remaining criteria for a Subclass 820 visa, with the understanding that the applicant's circumstances warranted further consideration despite the failure to meet the strict 28-day lodgement period for Schedule 3.