Safwan (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, by a citizen of Lebanon. The Department had refused the application on the grounds that the applicant did not meet the Schedule 3 criteria, as his application was lodged outside the specified timeframe and there were no compelling reasons to waive these criteria. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant held a substantive visa at the time of his application, or if not, whether there were compelling reasons not to apply the Schedule 3 requirements. Specifically, the Tribunal had to determine if the applicant satisfied criterion 3001 of Schedule 3, which requires an application to be lodged within 28 days of the cessation of the last substantive visa, or if compelling reasons existed to waive this requirement.

The Tribunal found that the applicant did not hold a substantive visa at the time of his application and had not lodged the Partner visa application within 28 days of his last substantive visa ceasing in March 2012. Consequently, the applicant did not satisfy criterion 3001. However, the Tribunal accepted at face value that the parties were in a genuine and continuing spousal relationship and considered the evidence presented, including medical reports and statements regarding the applicant's health and the sponsor's experiences in a previous marriage, as potentially constituting compelling reasons for not applying the Schedule 3 criteria.

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. This indicated that the Tribunal considered there were compelling reasons to waive the Schedule 3 requirements, allowing the application to proceed to the assessment of other criteria for the subclass 820 visa.