Ashish (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 Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the Schedule 3 criteria or if there were compelling reasons for these criteria not to be applied. The applicant's migration history, including previous visa applications and refusals, was noted, as was the sponsor's anxiety and the lack of medical evidence.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically clauses 3001, 3003, and 3004 of the Migration Regulations 1994, or if compelling reasons existed to waive these requirements. The Tribunal considered the definition of the 'relevant day' for the purpose of clause 3001 and the applicant's migration history, which indicated their last substantive visa ceased on 18 October 2017, with subsequent bridging visas granted. The Tribunal also had regard to the provisions of Regulation 1.15A, which outlines the matters to be considered when assessing a partner visa application, including the financial, household, social, and commitment aspects of the relationship.

The Tribunal reasoned that while the applicant did not hold a substantive visa at the time of application, the circumstances surrounding the relationship and the imminent birth of a child, coupled with the sponsor having no family in Australia, constituted compelling reasons for not applying the Schedule 3 criteria. The Tribunal found that the applicant met criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met this specific criterion.