WANG (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 had previously held a Student visa which expired, followed by a period of unlawful status before being granted a Bridging E visa. The applicant subsequently married an Australian citizen, with whom they had a child. The application for the Partner visa was lodged significantly outside the prescribed timeframe for meeting Schedule 3 criteria.

The primary legal issue before the Tribunal was whether the applicant met the criteria set out in Schedule 3 of the Migration Regulations 1994, or whether there were compelling reasons for these criteria to be waived. Specifically, the Tribunal had to determine if the application was lodged within the 28-day period required by criterion 3001, and if not, whether the circumstances warranted a waiver of the Schedule 3 requirements due to compelling reasons.

The Tribunal found that the applicant did not satisfy criterion 3001 as the application was lodged on 6 January 2017, well after the applicant's last substantive visa expired on 21 February 2012, and thus outside the 28-day window. Consequently, the Tribunal was required to consider whether compelling reasons existed for not applying the Schedule 3 criteria. The Tribunal noted that "compelling reasons" are not defined but must be sufficiently convincing and powerful to justify a waiver, referencing established case law. While the applicant's relationship with an Australian citizen and their child were factors, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister to assess the remaining criteria for the Subclass 820 visa, with the direction that the applicant met certain other specified criteria.