Nguyen (Migration)

This matter concerned 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 Administrative Appeals Tribunal was required to determine whether the applicant met the Schedule 3 criteria for the visa, or if there were compelling reasons for these criteria to be waived. The applicant’s migration history was a significant factor, including remaining in Australia unlawfully for approximately 4.5 years after their last substantive visa was cancelled.

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". The Tribunal found that the applicant did not meet this criterion, as their application was lodged significantly outside this timeframe. Consequently, the Tribunal then had to consider whether there were "compelling reasons" for not applying the Schedule 3 criteria, a phrase that requires circumstances sufficiently convincing to warrant a waiver.

The Tribunal acknowledged that compelling reasons can arise at any time and are not defined, but must be sufficiently powerful to lead to a positive finding for waiver. While the applicant's sponsor's long-term mental health issues and high dependency were noted, the Tribunal placed considerable weight on the applicant's poor migration history and prolonged unlawful presence in Australia. This history, involving the cancellation of a student visa and subsequent failure to lodge a further visa application for 4.5 years, was seen as a significant impediment to finding compelling reasons for a waiver.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant be taken to meet criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, allowing for further consideration of the remaining criteria for the Subclass 820 visa.