Manuweera Wickramagedera (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Manuweera Wickramagedera for a Partner (Temporary) (Class UK) visa, subclass 820. The applicant did not hold a substantive visa at the time of application, which engaged Schedule 3 criteria of the Migration Regulations 1994. The AAT was asked to determine whether compelling reasons existed to waive these criteria, particularly in light of the sponsor's mental health and the emotional and physical support provided by the applicant, which would lead to significant hardship for the sponsor if the applicant were not granted the visa.

The primary legal issue before the AAT was whether the circumstances of the case constituted compelling reasons to waive the Schedule 3 criteria, as contemplated by clauses 3003 and 3004 of Schedule 3. This required an assessment of whether the applicant's failure to hold a substantive visa was due to factors beyond their control and whether granting the visa would cause significant hardship to the sponsor. The AAT also had to consider whether the applicant had substantially complied with visa conditions and would have been eligible for the visa had they applied earlier or held a substantive visa.

The AAT Member, Helen Kroger, found that the applicant's situation presented compelling reasons to waive the Schedule 3 criteria. The decision focused on the significant hardship the sponsor would face due to mental health issues if the applicant were not granted the visa, coupled with the emotional and physical support the applicant provided. The AAT determined that the appropriate course of action was to remit the applications for the visa to the Minister for further consideration of the remaining criteria.