Singh (Migration)

This case concerned an application for review of a decision by the Migration Review Tribunal affirming the refusal to grant the applicant, a citizen of India, a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant had arrived in Australia on a student visa, which was subsequently cancelled. After the cancellation, and while holding a bridging visa, the applicant lodged the Partner visa application, asserting a de facto relationship with an Australian citizen. The applicant did not hold a substantive visa at the time of lodging the Partner visa application.

The primary legal issue before the court was whether the applicant satisfied the criteria under Schedule 3 of the Migration Regulations 1994, specifically clause 820.211(2)(d), which requires the applicant to hold a substantive visa at the time of application or demonstrate compelling reasons for the Minister to waive these criteria. This involved determining if the applicant met the timeframes stipulated in Schedule 3 for lodging the application and whether any compelling reasons existed to excuse compliance with these criteria.

The court found that the applicant did not meet the criteria in clause 820.211(2)(d) because he had not lodged his visa application within the 28-day period prescribed by Schedule 3, criterion 3001. The applicant's student visa was cancelled on 29 November 2016, and his Partner visa application was lodged on 8 August 2017, over nine months later. Consequently, the court determined it was unnecessary to consider whether there were compelling reasons for not applying the Schedule 3 criteria, as the applicant had already failed to satisfy the threshold requirement of lodging within the specified timeframe.

As the applicant did not satisfy the criteria under clause 820.211(2)(d), the Tribunal affirmed the decision not to grant the visa. The court therefore affirmed the Tribunal's decision.