Naidu (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, before the Tribunal. The applicant did not hold a substantive visa at the time of application, meaning they were required to satisfy the criteria in Schedule 3 of the Migration Regulations 1994, unless compelling reasons existed for those criteria not to be applied.

The primary legal issue before the Tribunal was whether the applicant met the Schedule 3 criteria, specifically criterion 3001, or if there were compelling reasons to waive these requirements. Criterion 3001 requires that an application for the visa be lodged within 28 days of the "relevant day," which in this case was the date the applicant's last substantive visa (a Subclass 457 visa) was cancelled.

The Tribunal found that the applicant failed to satisfy criterion 3001 as their visa application was lodged more than 28 days after the cancellation of their substantive visa. However, the Tribunal then considered whether compelling reasons existed to not apply the Schedule 3 criteria. Drawing on established case law, the Tribunal understood "compelling reasons" to be those that are sufficiently powerful to force a decision-maker to conclude that the criteria should not be applied. The Tribunal ultimately determined that the matter should be remitted for reconsideration, directing that the applicant be considered to meet criterion 820.211(2)(d) of Schedule 2 to the Regulations.