Mudbhary (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), made by a Nepalese national sponsored by an Australian citizen. The applicant had not held a substantive visa at the time of application, which triggered the application of Schedule 3 criteria under the Migration Regulations 1994. The core of the dispute revolved around whether the applicant met these Schedule 3 criteria or if there were compelling reasons for their waiver.

The Tribunal was required to determine whether the applicant satisfied the criteria set out in Schedule 3 of the Migration Regulations 1994, specifically concerning the requirement to have lodged the application within 28 days of the relevant day, or alternatively, whether compelling reasons existed for not applying these criteria. The Tribunal also considered evidence of the applicant's relationship with his sponsor, including the birth of a child in March 2019, and a letter from the sponsor detailing her chronic back pain and reliance on the applicant for daily assistance.

The Tribunal reasoned that while the applicant did not hold a substantive visa at the time of application and therefore had to satisfy Schedule 3 criteria unless compelling reasons existed for their waiver, the introduction of new evidence, including the birth of a child, warranted reconsideration. The Tribunal found that compelling reasons existed for not applying the Schedule 3 criteria, particularly in light of the sponsor's medical condition and the existence of a child of the relationship. Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.