Li (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant sought review of a decision not to grant the visa. The core of the dispute concerned whether the applicant met the Schedule 3 criteria, or if compelling reasons existed to waive them, given that the applicant did not hold a substantive visa at the time of application and had not applied within the prescribed timeframe.

The Tribunal was required to determine if the applicant satisfied Schedule 3 criteria 3001, 3003, and 3004, and if not, whether there were compelling reasons for the Minister to exercise discretion and not apply these criteria. Specifically, criterion 3001 requires an application to be lodged within 28 days of the "relevant day," which is defined as the last day the applicant held a substantive visa. The applicant's last substantive visa, a student visa, was cancelled in April 2016 due to non-compliance with visa conditions, and her Partner visa application was lodged on 30 April 2017.

The Tribunal found that the applicant did not satisfy criterion 3001 as her application was lodged more than 28 days after her last substantive visa ceased on 28 February 2017. Consequently, the Tribunal considered whether compelling reasons existed to waive this criterion. The Tribunal noted that "compelling reasons" are not defined but must be sufficiently convincing and powerful to warrant waiving the required criteria, citing case law such as *MZYPZ v MIAC* and *Babicci v MIMIA*. While the applicant and sponsor provided evidence about their relationship, they only addressed the issue of compelling reasons when pressed by the Tribunal.

Ultimately, the Tribunal affirmed the decision not to grant the visa, concluding that the applicant did not meet the necessary criteria.