Kami (Migration)

This matter concerned an applicant for a Partner (Temporary) (Class UK) visa, Subclass 820, who had remained in Australia unlawfully for a significant period. The applicant had entered Australia in October 2008 on a tourist visa and had subsequently held further tourist visas. His last substantive visa expired in May 2012, and he applied for a Partner visa in January 2018 without holding a substantive visa at that time. The Administrative Appeals Tribunal was required to determine whether the applicant met the Schedule 3 criteria as mandated by clause 820.211(2)(d) of the Migration Regulations 1994, or if there were compelling reasons to waive these criteria.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, or if compelling reasons existed for not applying these criteria. The applicant did not hold a substantive visa when he lodged his Partner visa application, meaning he was required to satisfy Schedule 3 criteria 3001, 3003, and 3004, unless the Minister was satisfied that compelling reasons justified not applying them. The Tribunal noted that criterion 3001 requires an application to be lodged within 28 days of the "relevant day," which the applicant failed to meet given the expiry of his last substantive visa in May 2012. Consequently, the Tribunal had to consider whether the circumstances presented constituted "compelling reasons" for not applying the Schedule 3 criteria, a concept requiring reasons that "force or drive the decision-maker 'irresistibly' to some end."

The Tribunal reasoned that because the applicant did not meet the Schedule 3 criteria, it was necessary to consider the existence of compelling reasons for not applying them. The Tribunal referenced established case law, including *Plaintiff M64/2015 v MIBP* and *MZYPZ v MIAC*, to define "compelling reasons" as circumstances sufficiently powerful to lead a decision-maker to conclude that the criteria should not be applied. While the applicant's failure to meet criterion 3001 was established, the Tribunal found that the matter should be remitted for reconsideration, directing that the applicant met criterion 820.211(2)(d)(ii) of Schedule 2 to the Regulations. This suggests that while the applicant did not meet the strict timeframes of Schedule 3, other factors were considered compelling enough to warrant further assessment of the visa application.