D'Angeli (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by Mr. D'Angeli. The core of the dispute concerned whether the applicant met the Schedule 3 criteria for the visa, or if compelling reasons existed to waive these criteria, as the applicant did not hold a substantive visa at the time of application. The Tribunal also had to consider the impact of the applicant's separation from his Australian spouse on the spouse's psychological well-being.

The legal issues before the Tribunal were whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, and if not, whether there were compelling reasons to waive these criteria. Criterion 3001 requires an application to be lodged within 28 days of a specified "relevant day." The Tribunal also had to assess the evidence regarding the psychological state of the sponsor, Mrs. D'Angeli, and whether this constituted compelling reasons for the waiver.

The Tribunal found that the applicant did not satisfy criterion 3001 as his application was lodged significantly later than 28 days after the relevant day. However, the Tribunal considered the definition of "compelling reasons" as requiring sufficiently convincing circumstances to warrant a waiver, referencing established case law. The Tribunal noted the applicant's extensive immigration history in Australia, reflecting a consistent intention to remain in the country. Crucially, the Tribunal considered a confidential psychological report concerning the sponsor, which indicated a deterioration in her mental health, including Adjustment Disorder with Anxiety and Pervasive Depressive Disorder, exacerbated by the uncertainty of the applicant's immigration status. The report detailed the sponsor's reliance on medication and past issues with alcohol, suggesting a significant impact on her well-being due to the potential separation.

Given these findings, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant be considered to meet criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, indicating that the matter should proceed to further assessment of the remaining visa criteria.