BIEN (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 dispute before the Tribunal was whether the applicant met the Schedule 3 criteria, and if not, whether compelling reasons existed for those criteria to be waived. The Tribunal was constituted by Roger Maguire.

The primary legal issues before the Tribunal were: first, whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001 which requires an application to be lodged within 28 days of the cessation of the last substantive visa; and second, if the applicant did not meet these criteria, whether there were compelling reasons for the Minister to waive them. The Tribunal noted that the expression "compelling reasons" is not defined but requires circumstances sufficiently convincing and powerful to justify waiving the criteria, drawing on case law such as *MZYPZ v MIAC* and *Babicci v MIMIA*.

The Tribunal found that the applicant's last substantive visa ceased on 27 January 2017, and the application was lodged on 18 March 2017, meaning the application was made more than 28 days after the cessation of the last substantive visa. Consequently, the applicant did not meet criterion 3001. The Tribunal then considered the concept of "compelling reasons" for waiver, referencing the Explanatory Statement to Statutory Rules 1996, No. 75, which suggests such reasons might include the existence of Australian citizen children from the relationship or a long-standing relationship. While the specific compelling reasons were not detailed in the provided text, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, Subclass 820, with the direction that the applicant meets criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. This indicates that the Tribunal found compelling reasons existed to waive the Schedule 3 requirements, allowing the application to proceed for further consideration of the remaining visa criteria.