1934219 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, where the applicant did not hold a substantive visa at the time of application. The primary dispute revolved around whether the applicant met the Schedule 3 criteria, or if there were compelling reasons for these criteria not to be applied. The decision was made by Justine Clarke.

The legal issues before the Tribunal were whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which requires an application to be lodged within 28 days of a relevant day. If criterion 3001 was not met, the Tribunal was required to determine if there were compelling reasons for not applying the Schedule 3 criteria, considering the circumstances that led to the applicant becoming unlawful and whether these were beyond their control.

The Tribunal found that the applicant did not satisfy criterion 3001 as the application was lodged significantly outside the 28-day timeframe after their last substantive visa expired. However, the Tribunal considered the meaning of "compelling reasons" as circumstances that "force or drive the decision-maker irresistibly" and are sufficiently powerful to justify not applying the criteria. While not bound by policy, the Tribunal noted that the Department's Procedures Advice Manual guides decision-makers to consider factors beyond the applicant's control. The Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.