Hoang (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa by the applicant. The primary dispute revolved around whether there were compelling reasons to waive the Schedule 3 criteria, which the applicant had failed to meet at the time of application. The decision was made by the Tribunal.

The legal issues before the Tribunal were whether the applicant met the "time of application" criteria under cl.820.211 of the Migration Regulations 1994, and if not, whether there were compelling reasons to waive the Schedule 3 criteria. Specifically, the Tribunal had to determine if the applicant satisfied cl.820.211(1)(a) and (1)(b), which included subclauses (2), (5), (6), (7), (8), or (9). The applicant conceded he did not meet subclauses (5) through (9) and also did not hold a substantive visa at the time of application, meaning cl.820.211(2)(d)(ii) applied, requiring satisfaction of Schedule 3 criteria 3001, 3003, and 3004.

The Tribunal found that the applicant did not satisfy Schedule 3 criterion 3001 because his application was made more than 28 days after he last held a substantive visa. The Tribunal accepted the applicant's evidence that his relationship with the sponsor broke down by November 2017, after the application date of 5 May 2017. However, the Tribunal determined that the breakdown of the relationship and allegations of family violence, while noted, did not constitute compelling reasons to waive the Schedule 3 criteria, particularly as there was no substantial evidence presented to support these claims. The Tribunal applied the principles from *MZYPZ v MIAC* and *Babicci v MIMIA* regarding the meaning of "compelling reasons" and *Waensila v MIBP* concerning when such circumstances could arise.

The Tribunal affirmed the delegate's decision not to grant the applicant a Partner (Temporary) (Class UK) visa, concluding that the applicant did not satisfy the criteria for the grant of the visa.