1606624 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an Indian national who had arrived in Australia in December 2008 on a student visa that ceased in March 2011. The applicant did not hold a substantive visa at the time of application, which was lodged in August 2012. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the Schedule 3 criteria, or if there were compelling reasons for these criteria to be waived, as required by clause 820.211(2)(d) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant satisfied criterion 3001, which mandates that an application be lodged within 28 days of the 'relevant day', defined as the day the applicant last held a substantive visa.

The Tribunal found that the applicant did not satisfy criterion 3001 as the application was lodged in August 2012, significantly after the relevant day in March 2011. Consequently, it was unnecessary to assess criteria 3003 and 3004. However, 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 warrant a waiver, referencing case law and departmental policy. The Tribunal concluded that the matter should be remitted for reconsideration, with a direction that the applicant meets criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.