Tour (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (subclass 820) by an applicant who had overstayed his previous bridging visas and did not hold a substantive visa at the time of his application. The applicant had a history of previous visa applications and appeals, and the sponsor was aware of the applicant's unlawful status. The Tribunal was required to determine whether the applicant met the criteria under Schedule 3 of the Migration Regulations 1994, specifically whether there were compelling reasons for not applying these criteria, given the applicant's lack of a substantive visa.

The central legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, which are mandatory for applicants who do not hold a substantive visa at the time of application, unless compelling reasons exist for their non-application. This involved assessing whether the applicant's circumstances, including the sponsor's pregnancy and the applicant's relationship with her step-child, constituted such compelling reasons. The Tribunal also considered the applicant's compliance with visa conditions and his history of unlawful presence in Australia.

The Tribunal affirmed the decision not to grant the visa. It found that the applicant had not demonstrated compelling reasons for the Schedule 3 criteria to be waived. While acknowledging the sponsor's pregnancy and the relationship with her daughter, the Tribunal concluded that these factors did not override the regulatory requirements. The applicant's prolonged period of unlawful status and previous unsuccessful visa applications were significant considerations in this assessment. The Tribunal applied the principles outlined in Schedule 3 of the Migration Regulations 1994, particularly clauses 3001, 3003, and 3004, in reaching its determination.