1904225 (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, or if there were compelling reasons for these criteria to be waived. The decision was made by Member Margie Bourke of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which requires an application to be lodged within 28 days of the "relevant day". If criterion 3001 was not met, the Tribunal was required to consider whether there were "compelling reasons" for not applying the Schedule 3 criteria, as contemplated by regulation 820.211(2)(d).

The Tribunal found that the applicant entered Australia on 17 January 2014 on a visitor visa which ceased on 17 April 2014, making this the "relevant day" for the purposes of Schedule 3. The partner visa application was lodged on 6 June 2017, significantly more than 28 days after the relevant day, meaning criterion 3001 was not satisfied. The Tribunal then considered the meaning of "compelling reasons," noting that these must be sufficiently convincing and powerful to warrant a waiver of the criteria, citing *MZYPZ v MIAC* and *Babicci v MIMIA*. The Tribunal concluded that the matter should be remitted for reconsideration, with a direction that the applicant met criterion 820.211(2)(d) of Schedule 2 to the Regulations.