Hou (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, where the applicant did not hold a substantive visa at the time of application. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the criteria in Schedule 3 of the Migration Regulations 1994, or if there were compelling reasons for these criteria to be waived. The applicant's substantive visa expired on 2 September 2011, and the visa application was lodged on 24 May 2017, meaning criterion 3001 of Schedule 3, which requires applications to be lodged within 28 days of the relevant day, was not met.

The Tribunal was therefore required to consider whether there were compelling reasons to waive the Schedule 3 criteria. The meaning of "compelling reasons" was considered, with reference to case law establishing that such reasons must be sufficiently convincing and the circumstances sufficiently powerful to justify a waiver. The Tribunal noted that while departmental policy guides decision-makers to consider factors beyond an applicant's control, it is not bound by this policy and must consider all circumstances. The Tribunal also referred to examples of circumstances that might constitute compelling reasons, such as the existence of Australian-citizen children or a long-standing partner relationship.

In its reasoning, the Tribunal found that while the applicant did not meet criterion 3001, there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal did not specify the exact nature of these compelling reasons in the provided text, but it was satisfied that they existed. Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant met criterion 820.211(2)(d)(ii) of Schedule 2 to the Regulations.