Kantachan (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820) by an applicant who did not hold a substantive visa at the time of her application. The Administrative Appeals Tribunal was required to determine whether the applicant met the Schedule 3 criteria, and if not, whether there were compelling reasons for those criteria not to be applied.

The primary legal issue was whether the applicant satisfied the criteria set out in Schedule 3 of the Migration Regulations 1994, specifically criterion 3001, or if compelling reasons existed to waive these requirements. The applicant did not hold a substantive visa when she lodged her application, meaning she was required to meet Schedule 3 criteria unless the Minister was satisfied that compelling reasons justified not applying them. The Tribunal found that the applicant failed to satisfy criterion 3001, which requires an application to be lodged within 28 days of the last day a substantive visa was held, as her Student visa had been cancelled over a year before the current application was filed.

The Tribunal then considered whether there were compelling reasons to waive the Schedule 3 criteria. It noted that "compelling reasons" must be sufficiently convincing and the circumstances sufficiently powerful to warrant a waiver. While acknowledging that such reasons could arise after the application was lodged, the Tribunal found the applicant's immigration history to be poor. She had only attended her course for three months and had not contacted the Department of Immigration after ceasing her studies, nor before lodging the current application. The Tribunal did not accept her explanations for this lack of engagement.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.