1605671 (Migration)

This matter concerned an application for a Partner (Temporary) visa (Subclass 820) by Mr Vara, a citizen of India, sponsored by Ms Gamage, an Australian citizen. Mr Vara did not hold a substantive visa at the time of his application, which meant he was required to satisfy the Schedule 3 criteria under cl.820.211(2)(d) of the Migration Regulations 1994, unless compelling reasons existed to waive these criteria. The delegate refused the visa, finding no compelling reasons to waive the Schedule 3 criteria, a decision affirmed by the Administrative Appeals Tribunal. Mr Vara appealed to the Federal Circuit Court, which remitted the matter to the Tribunal for reconsideration due to jurisdictional error in confining its assessment of compelling reasons to the time of application.

The primary legal issue before the Tribunal was whether Mr Vara satisfied the Schedule 3 criteria, or if there were compelling reasons to waive them. Specifically, the Tribunal had to determine if Mr Vara met criterion 3001, which requires an application to be lodged within 28 days of the "relevant day," defined as the day the applicant last held a substantive visa. If criterion 3001 was not met, the Tribunal then had to consider whether compelling reasons existed to waive the Schedule 3 requirements, acknowledging that such reasons could arise at any time, including after the application was lodged.

The Tribunal found that Mr Vara did not satisfy criterion 3001 as his visa application on 10 April 2014 was lodged more than 28 days after he last held a substantive visa on 28 July 2012. However, the Tribunal then considered whether compelling reasons existed to waive the Schedule 3 criteria. Based on submissions and documentary evidence, the Tribunal found that the parties were in a long-standing marriage, Ms Gamage was pregnant with their first child due in July 2016, Ms Gamage was financially dependent on Mr Vara due to maternity leave, and it would be very difficult for Ms Gamage to relocate to India. The Tribunal concluded that these circumstances constituted compelling reasons to waive the Schedule 3 criteria.

Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa to the department for reconsideration, with a direction that Mr Vara met criterion cl.820.211(2)(d) of Schedule 2 to the Regulations.