Zhang (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (subclass 820) made by the applicant. The primary issue before the Administrative Appeals Tribunal (AAT), presided over by Member Peter Emmerton, was whether the applicant met the requirements of Schedule 3 of the Migration Regulations 1994, or if there were compelling reasons for those criteria not to apply. The applicant had applied for the visa more than 28 days after their last substantive visa ceased.

The legal issues before the Tribunal were whether the applicant had demonstrated compelling reasons for not meeting the Schedule 3 criteria, specifically concerning the timing of their application relative to their last substantive visa. This required an assessment of the applicant's extensive immigration history, their claims of fear of harm from money lenders and persecution as a Christian, and the evidence provided regarding their sponsor's health and the anticipated hardship if the visa were not granted. The Tribunal also considered the applicant's explanation for not seeking legal advice and for not reading the delegate's decision.

The Tribunal found that the applicant's explanation for not understanding or reading the delegate's decision, and for not consulting legal expertise due to cost and being married to the sponsor, was unusual. After reviewing extensive evidence, including photos, bank statements, and utility accounts, and noting the applicant's substantial and complex immigration history dating back to 1997, which included multiple visa refusals, aborted removals, and unsuccessful appeals, the Tribunal concluded that the applicant had not established compelling reasons for the Schedule 3 criteria not to apply. While acknowledging some hardship was reasonably expected, the Tribunal found the evidence of hardship and the sponsor's health conditions to be minimal and unsubstantiated in the context of overcoming the Schedule 3 requirements.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa, finding that the applicant did not satisfy the criteria for its grant.