Gautam (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Partner (Temporary) (Class UK) visa (Subclass 820). The central dispute concerned whether the applicant met the requirements of Schedule 3 of the Migration Regulations 1994, or if compelling reasons existed to waive these criteria. The applicant did not hold a substantive visa at the time of application, and it was not disputed that the application was lodged significantly outside the prescribed 28-day timeframe following the cessation of the applicant's last substantive visa.

The Tribunal was required to determine if the applicant satisfied the criteria set out in Schedule 3, specifically criterion 3001, which mandates that an application be lodged within 28 days of the "relevant day." If this criterion was not met, the Tribunal then had to consider whether there were "compelling reasons" for the Minister to exercise discretion and waive the Schedule 3 requirements. The Tribunal also had to assess the applicant's claims regarding the spousal relationship with the sponsor, particularly in light of the applicant's lack of a substantive visa at the time of application.

The Tribunal reasoned that the applicant failed to satisfy criterion 3001 as the application was lodged approximately five years after the applicant's last substantive visa ceased. The Tribunal further found that the applicant had not provided compelling reasons to justify waiving the Schedule 3 criteria. The applicant's submissions regarding a dispute over a joint bank account were considered insufficient to demonstrate an ongoing spousal relationship or to constitute compelling circumstances for the waiver. The Tribunal applied the established legal principles that "compelling reasons" must be sufficiently convincing and the circumstances sufficiently powerful to warrant a waiver, referencing case law such as *MZYPZ v MIAC* and *Babicci v MIMIA*.

The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, concluding that the applicant did not meet the necessary criteria for the visa.