2204368 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820) by an applicant who did not hold a substantive visa at the time of application. The Administrative Appeals Tribunal was required to determine whether the applicant satisfied the Schedule 3 criteria, specifically criteria 3001, 3003, and 3004, or if there were compelling reasons not to apply these criteria.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Schedule 3 of the Migration Regulations 1994, given their lack of a substantive visa at the time of application. This involved assessing whether the application was lodged within the prescribed 28-day period after the "relevant day" as defined in criterion 3001. If the applicant failed to meet these criteria, the Tribunal had to consider whether any compelling reasons existed to waive their application, a standard requiring circumstances sufficiently powerful to "force or drive the decision-maker irresistibly."

The Tribunal found that the applicant did not satisfy Schedule 3 criterion 3001 because their visa application was lodged more than 28 days after their previous substantive visa ceased. The Tribunal also considered the applicant's submissions regarding their substantial criminal record and mental health condition, as well as the sponsor's potential hardship if required to move to Vietnam. However, these circumstances were not found to constitute compelling reasons that would necessitate the waiver of the Schedule 3 criteria. The Tribunal affirmed the decision not to grant the visa.