La (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant did not hold a substantive visa at the time of application and therefore was required to meet Schedule 3 criteria unless there were compelling reasons for these criteria not to apply. The Tribunal considered whether the applicant met Schedule 3 criteria, specifically criterion 3001, and if not, whether compelling reasons existed to waive these criteria.

The primary legal issues before the Tribunal were whether the applicant satisfied the Schedule 3 criteria, and if not, whether the circumstances constituted "compelling reasons" for the waiver of those criteria as contemplated by regulation 820.211(2)(d). The Tribunal noted that the applicant had not applied within the 28-day timeframe stipulated by criterion 3001, meaning the Schedule 3 criteria were not met. Consequently, the Tribunal was required to assess the existence of compelling reasons to depart from the usual requirements.

The Tribunal reasoned that "compelling reasons" must be sufficiently convincing and powerful to justify waiving the Schedule 3 criteria, referencing established case law. In this instance, the Tribunal found compelling reasons based on the applicant's long-standing married relationship and his role as the primary carer for his sponsor, who suffered from debilitating ill-health. The Tribunal was satisfied that the sponsor's condition made it impossible for her to maintain a semblance of a normal life without the applicant's dedicated care, deeming this a powerful and compelling reason to waive the Schedule 3 requirements.

The Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under regulation 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994, specifically concerning the waiver of Schedule 3 requirements due to compelling reasons.