Gong (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 lodgement. The Administrative Appeals Tribunal was required to determine whether the applicant satisfied the Schedule 3 criteria for the visa, or if there were compelling reasons for these criteria not to be applied.

The primary legal issues before the Tribunal were whether the applicant met the Schedule 3 criteria, specifically criterion 3001, and if not, whether compelling reasons existed to waive these requirements. Criterion 3001 mandates that an application be lodged within 28 days of the applicant's last substantive visa expiring. The Tribunal also had to consider the meaning and application of "compelling reasons" in the context of waiving Schedule 3 criteria, drawing on established case law.

The Tribunal found that the applicant did not satisfy criterion 3001 as his application was lodged almost four years after his last substantive visa expired. Consequently, the Tribunal considered whether there were compelling reasons to waive the Schedule 3 criteria. While acknowledging that compelling reasons can be sufficiently powerful to warrant a waiver, the Tribunal noted the applicant's very poor migration history, including a failure to engage with the Department and a potential abuse of immigration processes. Despite these negative factors, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister, directing that the applicant met criterion 820.211(2)(d)(ii) of Schedule 2 to the Regulations.