1710743 (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa (Subclass 820) made by an applicant who did not hold a substantive visa at the time of application. The primary dispute concerned whether the applicant met the Schedule 3 criteria, or if there were compelling reasons to waive these requirements.

The legal issues before the Tribunal were whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, and if not, whether compelling reasons existed to dispense with those criteria. Criterion 3001 requires an application to be lodged within 28 days of the last day a substantive visa was held. The applicant's last substantive visa expired on 1 February 2015, and the current application was filed almost two years later, meaning criterion 3001 was not met.

The Tribunal reasoned that for compelling reasons to justify waiving Schedule 3 criteria, they must be sufficiently convincing and powerful, as established in cases like *MZYPZ v MIAC* and *Babicci v MIMIA*. While acknowledging that compelling reasons can arise at any time, the Tribunal found the applicant's explanation for not holding a substantive visa – claiming non-receipt of interview notices and a refusal decision – lacked credibility. The applicant had also admitted to making false claims for his previous visa and intending to apply for a Protection visa upon arrival. Given these factors, the Tribunal concluded that there were no compelling reasons to waive the Schedule 3 criteria.

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