Fu (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 primary issue before the Tribunal was whether the applicant met the Schedule 3 criteria, or if there were compelling reasons for those criteria not to be applied, as required by clause 820.211(2)(d) of the Migration Regulations 1994. The applicant did not dispute that she failed to meet criterion 3001 of Schedule 3, as her application was lodged more than 28 days after the relevant day.

The Tribunal was required to determine if compelling reasons existed to waive the Schedule 3 criteria. The court noted that "compelling reasons" are not defined but must be sufficiently convincing and powerful to warrant a waiver, citing *MZYPZ v MIAC* [2012] FCA 478 and *Babicci v MIMIA* (2005) 141 FCR 285. The Tribunal considered evidence that the applicant had become pregnant after her initial visa application and subsequently gave birth to a son, who was an Australian citizen. This evidence, including medical reports, a doctor's letter, the child's birth certificate, and a letter from a Maternal Child Health Nurse, was presented to demonstrate compelling circumstances arising from the birth of the child.

The Tribunal found that the circumstances surrounding the birth of the applicant's Australian citizen child constituted compelling reasons for not applying the Schedule 3 criteria. Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant met criterion 820.211(2)(d) of Schedule 2 to the Regulations.