Li (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant who did not hold a substantive visa at the time of application. The decision was made by the Tribunal, with Member Rosa Gagliardi presiding. The core of the dispute revolved around the applicant's failure to meet Schedule 3 criteria, specifically criterion 3001, due to lodging the application more than 28 days after their last substantive visa expired.

The Tribunal was required to determine whether there were compelling reasons for not applying the Schedule 3 criteria, given the applicant's failure to meet criterion 3001. This involved considering the applicant's migration history, including previous visa applications and withdrawals, to ascertain if any circumstances constituted "compelling reasons" for waiving the standard timeframes. The Tribunal also had to assess whether the applicant had manipulated their circumstances to create such compelling reasons.

The Tribunal reasoned that while the applicant did not meet criterion 3001, the expression "compelling reasons" is not defined and requires circumstances sufficiently convincing to warrant a waiver. The Tribunal noted that such reasons can arise at any time, even after the application is lodged. After reviewing the applicant's migration history, which included entering Australia on a tourist visa, lodging a protection visa application, and subsequently withdrawing it before lodging the partner visa application, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, Subclass 820, with a direction that the applicant meets criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. This indicates that while the applicant failed to meet the initial timeframes, the Tribunal found sufficient grounds to allow further consideration of the application.