1812074 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought before the Tribunal by an applicant who did not hold a substantive visa at the time of application. The central dispute revolved around whether the applicant met the criteria set out in Schedule 3 of the Migration Regulations 1994, or if compelling reasons existed to waive these requirements.

The Tribunal was required to determine if the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which mandates that an application be lodged within 28 days of the applicant last holding a substantive visa. If this criterion was not met, the Tribunal had to consider whether compelling reasons existed for not applying the Schedule 3 criteria, a concept requiring circumstances sufficiently powerful to compel a decision-maker to overlook the criteria. The Tribunal also had to consider the applicant's immigration history, the sponsor's health and support capabilities, and the impact of COVID-19 pandemic travel restrictions.

The Tribunal found that the applicant did not satisfy criterion 3001 as the visa application was lodged significantly more than 28 days after the applicant's last substantive visa expired. However, the Tribunal acknowledged that compelling reasons for not applying the Schedule 3 criteria could arise at any time and are not confined to the applicant's control. The Tribunal considered various factors, including the sponsor's health and the impact of COVID-19 travel restrictions, which were presented as potentially compelling reasons.

Ultimately, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant meets criterion cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations. This indicates that while the applicant failed to meet the strict timeframes of Schedule 3, the Tribunal found sufficient grounds to proceed with the assessment of other visa criteria.