1409646 (Migration)

This decision concerned an application for a Partner (Temporary) (Class UK) visa by Mr Sharma, who last held a substantive visa on 9 December 2011 and lodged his application on 23 March 2012. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the Schedule 3 criteria were met at the time of the application and, if not, whether there were compelling reasons for not applying those criteria.

The Tribunal was required to consider two primary issues. Firstly, whether Mr Sharma met the Schedule 3 criteria, specifically criterion 3001, which requires an application to be made within 28 days of the "relevant day". Secondly, if the Schedule 3 criteria were not met, the Tribunal had to assess whether there were compelling reasons to waive their application, considering the circumstances presented by Mr Sharma.

The Tribunal found that Mr Sharma did not meet criterion 3001 of Schedule 3, as his application was lodged more than 28 days after the relevant day (9 December 2011). In relation to the second issue, Mr Sharma submitted that his genuine relationship with his wife, his close relationship with his wife's daughter, and a recent injury to his mother-in-law constituted compelling reasons for not applying the Schedule 3 criteria. However, the Tribunal noted that while previous policy guidance and explanatory statements had provided examples of compelling reasons such as long-standing relationships or the existence of Australian-citizen children, the policy had been revised to focus on the circumstances leading to an applicant becoming unlawful. The Tribunal concluded that the reasons provided by Mr Sharma did not constitute compelling reasons for a waiver under the current policy framework.

Consequently, the Tribunal affirmed the decision not to grant Mr Sharma the Partner (Temporary) (Class UK) visa.