1820052 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant did not hold a substantive visa at the time of application and therefore was required to satisfy Schedule 3 criteria unless compelling reasons existed for a waiver. The applicant failed to meet criterion 3001 of Schedule 3, as the application was lodged more than 28 days after the applicant ceased to hold a substantive visa. The Tribunal considered whether there were compelling reasons to waive these criteria, including allegations that the relationship was not genuine and was entered into solely for migration purposes, and the applicant's fear of returning to their home country due to their homosexuality and conservative family background, as well as the sponsor's mental health issues.

The primary legal issue before the Tribunal was whether the applicant met the Schedule 3 criteria for the visa, or if there were compelling reasons for these criteria to be waived. This involved determining the meaning of "compelling reasons" in the context of migration law, which requires circumstances sufficiently convincing and powerful to warrant a waiver. The Tribunal also had to consider whether adverse information, which the Department sought to withhold on public interest grounds, was material to the assessment of compelling reasons for a waiver, and whether its disclosure was required to satisfy natural justice obligations.

The Tribunal reasoned that "compelling reasons" are not defined but must be sufficiently convincing to justify exercising discretion to waive the criteria, citing *MZYPZ v MIAC* and *Babicci v MIMIA*. It also noted that such reasons can arise at any time, including after the application is lodged, referencing *Waensila v MIBP*. The Tribunal determined that it was required to consider adverse information, even if it related to the confidentiality of information sources, because it was material to the assessment of compelling reasons for waiving Schedule 3 criteria. The Tribunal found that the applicant did not meet criterion 3001 of Schedule 3.

The Tribunal remitted the application for reconsideration, directing that the applicant meets criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. This indicates that while the applicant did not meet the Schedule 3 criteria directly, the Tribunal found compelling reasons for a waiver, allowing the application to proceed to the assessment of other visa requirements.