BIBA (Migration)

The matter before the Tribunal concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant did not hold a substantive visa at the time of application and therefore was required to meet the criteria set out in Schedule 3 of the Migration Regulations 1994, unless compelling reasons existed for these criteria to be waived. The delegate had refused the visa application on the basis that the applicant failed to satisfy Schedule 3 criteria, specifically criterion 3001, and that no compelling reasons were found to waive these requirements.

The primary legal issue for the Tribunal was to determine whether the applicant met the Schedule 3 criteria, or if compelling reasons existed to waive them. This involved assessing whether the application was lodged within 28 days of the "relevant day" as defined in criterion 3001. The Tribunal also considered the policy considerations surrounding Schedule 3, which aim to encourage timely applications, discourage visa overstaying, and prevent individuals from benefiting from remaining in Australia unlawfully. The applicant argued that compelling reasons, including threats to their life in Albania and significant mental and psychological concerns for both parties, warranted a waiver of the Schedule 3 requirements.

The Tribunal found that the applicant did not satisfy criterion 3001 because the partner visa application was lodged more than 28 days after the relevant day, and the applicant had not held a substantive visa for nearly 12 months prior to this application. Despite this finding, the Tribunal considered the applicant's submissions regarding compelling reasons for a waiver. The Tribunal noted that compelling reasons must be sufficiently convincing and powerful to justify waiving the criteria, referencing established case law. The Tribunal acknowledged the applicant's efforts to maintain lawful status in Australia during the relevant period and did not find that the applicant had deliberately manipulated circumstances to create compelling reasons or that the applicant could easily depart Australia to apply for a partner visa offshore.

Given the findings, the Tribunal remitted the application for a Subclass 820 visa to the Minister for reconsideration. The Tribunal directed that the applicant be taken to meet criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, effectively waiving the Schedule 3 requirements for the purpose of further assessment.