Gomez Cruz (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by the 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, and if not, whether there were compelling reasons for those criteria not to be applied. The applicant’s Visitor visa had ceased on 23 March 2018, and the application for the Partner visa was lodged on 2 July 2018, meaning the application was made more than 28 days after the relevant day, thus failing to meet criterion 3001.

The Tribunal was required to determine if there were compelling reasons to dispense with the Schedule 3 criteria, given the applicant’s failure to meet criterion 3001. The applicant submitted that the sponsor suffered from a severe autoimmune condition causing significant weakness and inability to perform household tasks, requiring the applicant’s supervision of medication and performance of domestic duties. The applicant also stated that the sponsor was sometimes bedridden for one to two days at a time due to these health issues.

The Tribunal reasoned that compelling reasons must be sufficiently powerful to drive a decision-maker irresistibly to a particular conclusion. Considering the evidence of the sponsor's chronic health condition and the applicant's essential role in providing financial and emotional support, particularly during episodes of severe illness, the Tribunal found that these circumstances constituted compelling reasons for not applying the Schedule 3 criteria. Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under cl 820.211(2)(d) of Schedule 2 to the Regulations.