Goyal (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought before the Tribunal by the applicant, Mr. Goyal. The central dispute revolved around whether the applicant met the Schedule 3 criteria for the visa, or if compelling reasons existed to waive these criteria, given that the application was lodged outside the prescribed timeframe. The Tribunal considered evidence relating to the sponsor's pregnancies, the applicant's required care and support, the sponsor's financial hardship in the applicant's absence, and the applicant's absence from their children, as well as the applicant's immigration history.

The primary legal issue before the Tribunal was 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. The Tribunal was also required to determine if compelling reasons existed for not applying these criteria, as defined by case law, which necessitates circumstances sufficiently convincing and powerful to warrant a waiver. The Tribunal noted that compelling reasons could arise at any time, including after the visa application was made.

The Tribunal found that the applicant did not satisfy criterion 3001 as the application was lodged on 16 November 2017, which was more than 28 days after the applicant's student visa ceased on 30 August 2017. Despite this, the Tribunal considered the evidence presented in response to an outreach letter requesting information on compelling circumstances. The Tribunal concluded that, based on the material before it, there were 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 meets criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. This indicates that while the applicant failed to meet the strict timeframe of Schedule 3, the Tribunal found sufficient compelling reasons to allow the application to proceed to further assessment.