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 dispute before the Tribunal was whether the applicant met the Schedule 3 criteria, and if not, whether there were compelling reasons to waive those criteria. The Tribunal was presided over by Senior Member Justin Owen.

The primary legal issues before the Tribunal were whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, and if not, whether compelling reasons existed to waive the application of these criteria. The applicant had not applied for the visa within 28 days of their last substantive visa ceasing to be in effect, meaning they did not meet criterion 3001. The Tribunal was therefore required to consider the meaning of "compelling reasons" in the context of waiving Schedule 3 criteria, drawing on established case law.

The Tribunal reasoned that the applicant's provision of emotional and physical support to the sponsor's parents did not constitute compelling reasons for waiving the Schedule 3 criteria. It was noted that emotional support could be maintained offshore, and physical support could be provided by other family members or services. The Tribunal applied the principles from cases such as *MZYPZ v MIAC* and *Babicci v MIMIA*, which establish that "compelling reasons" must be sufficiently convincing and the circumstances sufficiently powerful to warrant a waiver. The Tribunal found that the degree of hardship presented by the applicant did not meet this threshold.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa, as the applicant failed to satisfy the relevant Schedule 3 criteria and no compelling reasons were found to waive their application.