Tatu (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820) made by an applicant who did not hold a substantive visa at the time of application. The applicant sought a waiver of Schedule 3 criteria, specifically criterion 3001, which requires an application to be lodged within 28 days of the relevant day. The decision under review was made by the Migration Review Tribunal, presided over by Member Justin Meyer.

The primary legal issue before the Tribunal was whether there were compelling reasons for not applying the Schedule 3 criteria, given that the applicant failed to meet criterion 3001 by lodging their application significantly more than 28 days after their last substantive visa expired. The Tribunal was required to consider the applicant's circumstances, including the length and genuineness of their relationship, their role within the sponsor's family, and the reasons for their prolonged unlawful status in Australia.

The Tribunal reasoned that the applicant did not satisfy criterion 3001 as their application was lodged on 29 December 2017, long after their last substantive visa expired on 26 July 1993. While acknowledging the applicant's long-term relationship, marriage, and significant contributions to the sponsor's family, including caring for the sponsor's children, the Tribunal found that the applicant's unlawful status was due to carelessness rather than factors beyond their control. The Tribunal noted that the applicant had been an unlawful non-citizen for a considerable period. Despite the evidence of a genuine relationship and the applicant's positive role in the family and community, these factors were not considered sufficient to establish compelling reasons to waive the Schedule 3 criteria, particularly criterion 3001.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa. The Tribunal also considered and found that alternative criteria under cl.820.211(5)-(9) were not claimed or met by the applicant.