Singh (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant who had been an unlawful non-citizen for almost six years. The applicant’s sponsor was aware of the applicant’s immigration status. The primary dispute revolved around whether the applicant met the Schedule 3 criteria, and if not, whether there were compelling reasons for those criteria to be waived. The decision was made by Senior Member Justin Owen of the Tribunal.

The legal issues before the Tribunal were whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, and if not, whether there were compelling reasons for not applying these criteria. Criterion 3001 requires that an application for the visa be lodged within 28 days of the 'relevant day'. The applicant arrived in Australia on 25 July 2008 on a student visa which ceased on 15 March 2012, and the Partner visa application was lodged on 7 February 2018, significantly outside the 28-day timeframe.

The Tribunal found that the applicant did not satisfy criterion 3001 as the application was not made within 28 days of the relevant day. Consequently, the Tribunal was required to consider whether compelling reasons existed to waive the Schedule 3 criteria. The Tribunal noted that 'compelling reasons' are not defined but must be sufficiently convincing to warrant the exercise of discretion, citing established case law. While the applicant raised factors such as the best interests of their Australian citizen child, the sponsor's pregnancy, the sponsor's emotional fragility, and financial stability, the Tribunal considered these, along with the length and genuineness of the relationship, were not, by themselves, sufficient to constitute compelling reasons. The Tribunal also noted an attempt to manipulate circumstances to create compelling reasons.

The Tribunal concluded that the matter should be remitted for reconsideration. The decision directed that the applicant be considered to meet the criteria for a Subclass 820 (Partner) visa under cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, indicating that the Minister should consider the remaining criteria for the visa.