Singh (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant, who had entered Australia on a student visa that was later cancelled, applied for the partner visa after his student visa had ceased and after a period of more than 28 days had elapsed since he last held a substantive visa. The applicant's sponsor was an Australian citizen. The core dispute revolved around whether the applicant met the criteria set out in Schedule 3 of the Migration Regulations 1994, or if there were compelling reasons to waive these criteria. The decision was made by Member Helena Claringbold.

The primary legal issues before the Tribunal were whether the applicant satisfied the criteria stipulated in Schedule 3 of the Migration Regulations 1994, and if not, whether there were compelling reasons to dispense with those criteria. Specifically, the Tribunal was required to determine if the applicant met criterion 3001, which mandates that an application be lodged within 28 days of the "relevant day," defined in relation to the cessation of a substantive visa. The Tribunal also had to consider the broader question of whether compelling reasons existed to overlook the Schedule 3 requirements, given the applicant's failure to meet them.

The Tribunal reasoned that the applicant did not satisfy criterion 3001 because his partner visa application was lodged on 16 March 2017, more than 28 days after his substantive student visa ceased on 10 May 2016. As the applicant did not hold a substantive visa at the time of application and did not meet the 28-day lodgement requirement, he failed to meet the Schedule 3 criteria. While the Tribunal acknowledged the financial interdependence of the parties and the sponsor's difficulties in finding employment in her specialised field, it concluded that these circumstances did not constitute compelling reasons to waive the Schedule 3 criteria. The Tribunal found that the applicant had demonstrated resourcefulness in Australia and that the sponsor might need to seek employment in other fields or rely on family assistance.

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