Nguyen (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought before the Tribunal by an applicant who had ceased to hold a substantive visa more than 28 days prior to lodging the application. The central dispute revolved around whether the applicant met the Schedule 3 criteria for the visa, or if there were compelling reasons for those criteria to be waived.

The Tribunal was required to determine whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which mandates that an application be lodged within 28 days of the "relevant day." The "relevant day" was defined as the day the applicant last held a substantive visa, which in this case was 24 April 2013, with the application lodged on 18 December 2017. If the applicant did not meet these criteria, the Tribunal also had to consider whether compelling reasons existed for not applying them, interpreting "compelling reasons" as circumstances sufficiently powerful to irresistibly drive a decision-maker to a particular conclusion, drawing on established case law.

The Tribunal found that the applicant did not satisfy criterion 3001 as the application was lodged significantly outside the 28-day timeframe. However, it then considered the concept of "compelling reasons" for waiving the Schedule 3 criteria, noting that such reasons could arise at any time and should be assessed based on the totality of the evidence. The Tribunal acknowledged that compelling reasons might include circumstances that resulted in the applicant becoming unlawful and were beyond their control, referencing departmental policy but affirming its obligation to consider all circumstances.

Ultimately, the Tribunal remitted the application for reconsideration, directing that the applicant be taken to meet criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. This direction implies that compelling reasons were found to exist for the waiver of the Schedule 3 criteria, allowing the application to proceed to the assessment of other relevant criteria for the Subclass 820 visa.