Ku (Migration)

The matter concerned an application for a Partner (Temporary) (Class UK) visa by the applicant, who was not the holder of a substantive visa at the time of application. The sponsor was an Australian citizen. The central dispute revolved around whether the applicant met the criteria in Schedule 3 of the Migration Regulations 1994, or whether compelling reasons existed for a waiver of those criteria.

The court was required to determine if the applicant satisfied criterion 3004 of Schedule 3, and if not, whether there were compelling reasons for the Minister to waive these criteria. Specifically, the court considered whether the applicant's failure to hold a substantive visa at the time of application was due to circumstances beyond his control, and whether the nature of his relationship with the sponsor and his mother's care needs constituted compelling reasons for a waiver.

The court found that the applicant did not meet criterion 3004 of Schedule 3. While the applicant had lodged his visa application within 28 days of his last substantive visa ceasing, the court determined that the circumstances leading to his lack of a substantive visa were not beyond his control. Furthermore, the court concluded that the applicant's mother's need for professional medical care, while a consideration, did not amount to compelling reasons for a waiver of the Schedule 3 criteria in this instance.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa.