Adhikari (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by the 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 for the visa, or if there were compelling reasons for these criteria to be waived. The Administrative Appeals Tribunal (the Tribunal) considered the evidence before it, including information provided in response to an outreach letter requesting evidence of compelling circumstances.

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. It was not disputed that the applicant failed to meet this criterion, as the application was lodged significantly after the cancellation of the applicant's student visa on 15 November 2011, with the application being lodged on 15 May 2017. Consequently, the Tribunal was required to determine if there were compelling reasons for not applying the Schedule 3 criteria, a determination that requires circumstances sufficiently convincing and powerful to warrant a waiver.

The Tribunal reasoned that while the applicant did not meet the strict timeframes of criterion 3001, the expression "compelling reasons" is not defined and can arise at any time, including after the application is made. The Tribunal noted that compelling reasons must be sufficiently convincing to move the decision-maker to exercise discretion. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant meets criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, indicating that compelling reasons for a waiver were found to exist.