Zhao (Migration)

This matter concerned an application for review of a decision to affirm the refusal of Partner (Temporary) (Class UK) visas for the first named applicant and a secondary applicant, identified as the first applicant's child. The primary dispute revolved around whether the applicants met the Schedule 3 criteria of the Migration Regulations 1994, or if compelling reasons existed to waive these criteria. The first applicant had not held a substantive visa at the time of application, and the Department had invited the applicants to provide reasons why the Schedule 3 criteria should not apply.

The Tribunal was required to determine whether the applicants satisfied the Schedule 3 criteria, specifically concerning the timing of their application relative to their last substantive visa, and whether compelling reasons existed for these criteria to be waived. The first applicant's visa history indicated that her last substantive visa expired in August 2016, and a subsequent application was refused in April 2017, after which she held a bridging visa. The Tribunal considered various documents, including tax notices, payslips, and evidence relating to the secondary applicant's education and the parties' finances and relationship, as well as statutory declarations supporting the genuineness of the relationship.

The Tribunal reasoned that the applicants had not provided sufficient evidence to demonstrate compelling reasons for the Schedule 3 criteria to be waived. While the applicants had provided some documentation regarding their relationship, finances, and education costs, these did not adequately address the specific requirements of Schedule 3, particularly concerning factors beyond the applicant's control for not holding a substantive visa. The Tribunal noted that the provided documents generally did not address compelling reasons for the Schedule 3 criteria not to apply.

Consequently, the Tribunal affirmed the decisions not to grant the Partner (Temporary) (Class UK) visas to the applicants, finding that they did not satisfy the criteria for the grant of the visa.