Sandhu (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by Mr Sandhu. The Federal Circuit Court was required to consider 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 did not hold a substantive visa at the time of application, and it was not disputed that he failed to meet criterion 3001 of Schedule 3, as his application was lodged significantly outside the prescribed 28-day period after his last substantive visa ceased.

The central legal issue before the Tribunal was whether there were "compelling reasons" for the Schedule 3 criteria to be waived, given the applicant's failure to meet criterion 3001. The Tribunal noted that the expression "compelling reasons" is not defined but requires circumstances sufficiently convincing and powerful to lead a decision-maker to exercise discretion to waive the criteria. The Tribunal considered the applicant's lengthy history in Australia, his previous visa applications, and the circumstances surrounding the cessation of his last substantive visa.

The Tribunal reasoned that while the applicant did not meet the strict timeframes of criterion 3001, his long history in Australia and the context of his relationship with the sponsor could constitute compelling reasons for a waiver. The Tribunal found that the applicant had a lengthy history in Australia, having arrived in 2009 and held several student visas, and had been included in a previous partner visa application. The Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.