Gurung (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Gurung, who applied for a Partner (Temporary) (Class UK) visa, Subclass 820. The primary dispute concerned whether Mr. Gurung met the Schedule 3 criteria, specifically criterion 3001, which requires an applicant to have held a substantive visa within 28 days of lodging their application, or if there were compelling reasons for this criterion not to apply.

The Tribunal was required to determine if Mr. Gurung satisfied the Schedule 3 criteria, or if compelling reasons existed to waive them. This involved assessing whether the application was lodged within the prescribed 28-day period after the cessation of his last substantive visa, and if not, whether the circumstances presented constituted "compelling reasons" for the criteria to be disregarded. The Tribunal also had to consider the applicant's arguments regarding potential persecution upon return to Nepal and the inability to obtain a passport for his newborn child, which could lead to separation.

The Tribunal found that Mr. Gurung did not satisfy criterion 3001 as his application was lodged significantly more than 28 days after his last substantive visa expired. However, the Tribunal acknowledged that "compelling reasons" are not defined and require circumstances sufficiently convincing to warrant a waiver of the criteria. While Mr. Gurung presented arguments including facing persecution and the practical difficulties of obtaining a passport for his child due to Nepalese citizenship laws, the Tribunal ultimately concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, Subclass 820, 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 Schedule 3 criteria were not met, the matter was to be sent back for further consideration of other relevant criteria for the visa.