Bamba (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner) visa, by an applicant who had been in Australia unlawfully for a significant period before being granted a bridging visa. The applicant lodged their visa application more than 28 days after their last substantive visa was cancelled. The dispute centred on whether the applicant met the Schedule 3 criteria, and if not, whether there were compelling reasons to waive those criteria. The decision was made by Member Helena Claringbold of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant satisfied the criteria set out in Schedule 3 of the Migration Regulations 1994, specifically criterion 3001, which requires applications to be lodged within 28 days of the relevant day. If the applicant failed to meet these criteria, the Tribunal was required to determine if there were compelling reasons for not applying them, a concept requiring sufficiently convincing circumstances to warrant a waiver.

The Tribunal found that the applicant did not satisfy criterion 3001 as their application was lodged more than 28 days after their substantive visa was cancelled. The Tribunal considered the meaning of "compelling reasons" as outlined in case law, noting that such reasons must be sufficiently powerful to justify waiving the criteria. While acknowledging the applicant's lengthy unlawful residence and the existence of a genuine relationship with two young children, the Tribunal concluded that these factors, in themselves, did not constitute compelling reasons for waiving the Schedule 3 criteria.

Consequently, the Tribunal remitted the application for reconsideration. The direction was that the applicant was to be taken as meeting the criteria specified in cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, allowing for further assessment of the visa application.