Mai (Migration)

The Administrative Appeals Tribunal considered 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 dispute centred on whether the applicant met the criteria in Schedule 3 of the Migration Regulations 1994, or if there were compelling reasons for these criteria to be waived.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which requires an application to be lodged within 28 days of the relevant day. If not, the Tribunal had to determine if there were compelling reasons to waive these criteria. The Tribunal was required to apply the established legal principles regarding what constitutes "compelling reasons," which necessitate circumstances sufficiently convincing and powerful to warrant a waiver.

The Tribunal found that the applicant did not meet criterion 3001 as the visa application was lodged outside the prescribed 28-day period. However, in considering whether compelling reasons existed for a waiver, the Tribunal noted the applicant's submission that they and the sponsor had a common child. Following a request from the Tribunal, DNA testing was conducted, which confirmed with a high degree of certainty that the applicant and sponsor were the biological parents of the child. The Tribunal also considered the sponsor's care of the applicant and child in Australia, and the economic hardship and social dislocation that would result from relocation abroad.

Based on these findings, the Tribunal remitted the application for reconsideration. The Tribunal directed that the applicant be taken to meet the criteria specified in cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, effectively waiving the Schedule 3 requirements due to the compelling circumstances identified.