Raganas (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought before the Tribunal by the applicant. The central dispute revolved around the applicant's failure to meet Schedule 3 criteria, specifically criterion 3001, due to not holding a substantive visa at the time of application and lodging the application more than three years after the cessation of their last substantive visa. The Tribunal was required to determine whether compelling reasons existed to waive these Schedule 3 criteria.

The Tribunal was tasked with assessing whether the applicant met the Schedule 3 criteria for the Subclass 820 visa, or if there were compelling reasons for these criteria to be waived. The applicant did not hold a substantive visa when applying, and their last substantive visa, a prospective marriage visa, had expired on 3 April 2014. The application for the Subclass 820 visa was lodged on 11 July 2017, significantly outside the 28-day timeframe stipulated by criterion 3001. Therefore, the primary legal issue was whether the circumstances presented constituted "compelling reasons" to dispense with the Schedule 3 requirements.

The Tribunal found that the applicant did not satisfy criterion 3001 as the application was lodged over three years after the relevant day. Consequently, the Tribunal considered whether compelling reasons existed to waive the Schedule 3 criteria, referencing established legal principles that such reasons must be sufficiently convincing and the circumstances powerful enough to justify a waiver. While acknowledging the applicant remained unlawfully in Australia after their previous visa expired and that their marriage had broken down, the Tribunal did not find these circumstances, as presented, to be compelling enough to waive the Schedule 3 criteria. However, the Tribunal noted the existence of two children of the relationship and the best interests of the children, which were not fully explored in the context of compelling reasons.

Given these considerations, the Tribunal remitted the application to the Department for reconsideration, directing that the applicant be taken to meet criterion cl.820.211(2)(d) of Schedule 2 to the Regulations. This effectively allowed for further consideration of the application without the immediate bar of the Schedule 3 criteria, implying that the best interests of the children might be a factor in the ultimate decision.