TRIEU (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant had lodged the visa application on 14 March 2018, more than 28 days after the expiry of his last substantive visa on 27 August 2014, and had remained in Australia as an unlawful non-citizen for a significant period. The Administrative Appeals Tribunal (Cth) considered the applicant's eligibility for the visa, particularly in light of the Schedule 3 criteria of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Partner (Temporary) (Class UK) visa, specifically concerning the Schedule 3 requirements. As the applicant was not the holder of a substantive visa at the time of application, he was required to satisfy Schedule 3 criteria unless there were compelling reasons for those criteria not to be applied. The Tribunal was required to determine if the applicant met criterion 3001 of Schedule 3, which mandates that an application be lodged within 28 days of the relevant day, and if not, whether compelling reasons existed to waive this requirement.

The Tribunal found that the applicant did not satisfy criterion 3001 of Schedule 3, as his visa application was lodged significantly later than 28 days after his last substantive visa expired. Consequently, the Tribunal was not required to assess the remaining Schedule 3 criteria. While the applicant argued for compelling reasons to waive the Schedule 3 requirements, citing his sponsor's mental health, their young child's medical condition, and the financial and emotional support provided, the Tribunal affirmed the delegate's decision to refuse the visa. The Tribunal concluded that the applicant did not meet the criteria for the grant of the visa.