Tanaumporn (Migration)

This matter concerned an application for review of a decision by the Migration Review Tribunal (the Tribunal) to affirm the refusal of a Partner (Temporary) (Class UK) visa. The applicant, who was not the holder of a substantive visa at the time of application, sought to have the Schedule 3 criteria waived.

The primary legal issue before the Tribunal was whether there were compelling reasons for the Schedule 3 criteria to be waived, as the applicant did not meet criterion 3001, which requires an application to be lodged within 28 days of the relevant day. The applicant’s substantive visa expired on 27 June 2010, but the visa application was not lodged until 5 April 2013, significantly exceeding the 28-day timeframe.

The Tribunal reasoned that while the applicant and their sponsor were legally married and had been in a long-standing relationship for over two years, this fact alone was not sufficient to establish compelling reasons for a waiver. The Tribunal noted that the waiver provision was intended to provide flexibility in exceptional circumstances, such as the existence of Australian citizen children or a very long-standing relationship, but these were examples and not exhaustive. Crucially, the Tribunal considered the applicant's migration history, which indicated a period of unlawful stay in Australia of approximately two years and seven months. The Tribunal found that the applicant had provided little meaningful explanation for this period of unlawful status and appeared to have little understanding of the implications of overstaying a visa, suggesting an attempt to avoid discussing the matter. The Tribunal concluded that the purpose of Schedule 3 criteria, which is to encourage timely applications and discourage unlawful stays, was undermined by the applicant's conduct.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.