1814075 (Migration)

This matter concerned 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 dispute centred on whether the applicant met the Schedule 3 criteria, specifically criterion 3001, or if there were compelling reasons for not applying these criteria. The decision was made by Roger Maguire, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant satisfied criterion 3001 of Schedule 3, which requires an application to be lodged within 28 days of the "relevant day," and if not, whether there were compelling reasons for not applying the Schedule 3 criteria. The applicant had lodged their visa application on 9 June 2017, but their last substantive visa had ceased on 17 July 2016, meaning the application was lodged more than 28 days after the relevant day.

The Tribunal found that the applicant did not satisfy criterion 3001 as the application was lodged outside the prescribed 28-day period. Consequently, the Tribunal was required to consider whether compelling reasons existed to waive these criteria. The Tribunal noted that "compelling reasons" are not defined but must be sufficiently convincing and powerful, citing case law that indicates such reasons can arise at any time, including after the application is made. The Explanatory Statement to the Migration Regulations suggests that reasons of a "strongly compassionate" nature, such as the existence of Australian citizen children from the relationship or a long-standing relationship, may justify waiving the Schedule 3 criteria.

Given the findings, the Tribunal remitted the application for reconsideration. The direction was that the applicant meets criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, indicating that the Minister should consider the remaining criteria for the Subclass 820 visa, with the understanding that the Schedule 3 requirements, in this specific aspect, are to be treated as met.