Singh (Migration)

This matter concerned an applicant for a Partner (Temporary) (Class UK) visa who did not hold a substantive visa at the time of application. The dispute before the Migration Review Tribunal was whether the applicant met the Schedule 3 criteria, or if there were compelling reasons for those criteria not to be applied. The applicant had arrived in Australia in 2008 on a student visa, which subsequently ceased. After a series of visa applications, refusals, appeals, and unsuccessful applications for Ministerial Intervention, the applicant remained in Australia as an unlawful non-citizen for over six years before being granted a Bridging Visa E in association with the Partner visa application.

The Tribunal was required to determine if the applicant satisfied the criteria set out in Schedule 3 of the Migration Regulations 1994, specifically clauses 3001, 3003, and 3004, or if compelling reasons existed to waive these requirements. The core of the issue revolved around the applicant's immigration status since the cessation of their last substantive visa and whether their continued presence in Australia as an unlawful non-citizen was due to factors beyond their control, and if compelling reasons warranted the application of the Schedule 3 criteria.

The Tribunal found that the applicant did not meet the Schedule 3 criteria. The applicant had ceased to hold a substantive visa on or after 1 September 1994 and had entered Australia unlawfully on or after that date, remaining unlawful for an extended period. The Tribunal noted that the applicant had not provided any evidence to suggest that their failure to hold a substantive visa was due to factors beyond their control, nor had they demonstrated compelling reasons for the criteria to be waived. Furthermore, the Tribunal found no indication that the applicant had complied substantially with the conditions of their previous visas or bridging visas, or that they would have been entitled to the visa applied for had they made the application earlier.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, concluding that the applicant did not satisfy the necessary criteria for the visa grant.