SAAD (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820. The applicant 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 for these criteria to be waived.

The primary legal issue 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 was also required to determine if compelling reasons existed to waive these criteria, given the applicant’s failure to meet them.

The Tribunal found that the applicant did not satisfy criterion 3001 as the application was lodged more than four months after the expiry of her last substantive visa. Consequently, the Tribunal considered whether compelling reasons existed for waiving the Schedule 3 criteria. The Tribunal noted that "compelling reasons" must be sufficiently convincing and powerful to justify waiving the criteria, referencing established case law. While the applicant presented a medical condition that was likely to worsen if she returned to her home country, the Tribunal found no indication that the Department's previous refusal of a subclass 485 visa application, which contributed to her current situation, was incorrect.

Given these findings, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.