Dau (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by the first applicant, who was not the holder of a substantive visa at the time of application. The second applicant was the Australian citizen daughter of the first applicant, and the first applicant was her primary caregiver. The Tribunal was required to determine whether the first applicant met the Schedule 3 criteria, specifically criterion 3001, or if there were compelling reasons for not applying those criteria.

The primary legal issue before the Tribunal was whether the applicant satisfied criterion 3001 of Schedule 3, which requires an application to be lodged within 28 days of the "relevant day" when the applicant does not hold a substantive visa at the time of application. The Tribunal also considered the meaning of "compelling reasons" in the context of excusing the applicant from meeting the Schedule 3 criteria. The applicant had arrived in Australia on a Student visa, which was later cancelled, rendering her an unlawful non-citizen. She subsequently applied for the Partner visa more than 28 days after the relevant day as defined in criterion 3001(2), and therefore did not meet that criterion.

The Tribunal reasoned that while the applicant did not meet criterion 3001, the expression "compelling reasons" requires circumstances that are sufficiently powerful to drive a decision-maker to grant the visa. Such reasons can arise at any time, including after the visa application is lodged. The Tribunal found that the applicant's status as the primary caregiver of an Australian citizen daughter constituted compelling reasons for not applying the Schedule 3 criteria. Consequently, the Tribunal remitted the applications for Partner (Temporary) (Class UK) visas for reconsideration, directing that the first applicant met the relevant criteria for a Subclass 820 visa, while noting it did not have jurisdiction in relation to the second applicant.