Gautam (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, lodged by an applicant who did not hold a substantive visa at the time of application. The dispute centred on whether the applicant met the Schedule 3 criteria, or if there were compelling reasons for these criteria to be waived. The decision was made by the Tribunal.

The Tribunal was required to determine whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which requires an application to be lodged within 28 days of the relevant day. If the applicant did not meet this criterion, the Tribunal then had to consider whether there were compelling reasons to waive the Schedule 3 requirements, as mandated by clause 820.211(2)(d) of the Regulations.

The Tribunal found that the applicant did not satisfy criterion 3001 as the application was lodged significantly outside the 28-day timeframe. However, the Tribunal considered the meaning of "compelling reasons" for waiving the criteria, noting that such reasons must be sufficiently convincing and powerful. While the applicant initially provided limited evidence, subsequent submissions, including evidence of the sponsor's severe epilepsy and other medical conditions, and the absence of other caregivers, demonstrated substantial changes in the sponsor's circumstances. These factors, particularly the sponsor's reliance on the applicant for physical and emotional support, were found to constitute compelling reasons for not applying the Schedule 3 criteria. Consequently, the Tribunal remitted the application for reconsideration, directing that the applicant be considered to meet criterion 820.211(2)(d)(ii) of Schedule 2.