Singh (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by Mr Singh. The central dispute revolved around whether the applicant met Schedule 3 criteria, and if not, whether compelling reasons existed to waive these requirements. The applicant did not hold a substantive visa at the time of application, meaning Schedule 3 criteria were engaged unless waived.

The Tribunal was required to determine if the applicant satisfied Schedule 3 criterion 3001, which mandates that an application be lodged within 28 days of the "relevant day". If this criterion was not met, the Tribunal had to consider whether compelling reasons justified waiving the Schedule 3 criteria, as per regulation 820.211(2)(d). The Tribunal noted that the applicant's last substantive visa expired over a year before the current application was lodged, thus failing the 28-day lodgement requirement for criterion 3001.

In assessing whether compelling reasons existed to waive the Schedule 3 criteria, the Tribunal considered the applicant's marriage and the birth of their child to the sponsor. The sponsor highlighted the applicant's emotional, physical, and financial support, and expressed concern about the impact on their daughter if she were to grow up without her father. The Tribunal referenced established legal principles that "compelling reasons" must be sufficiently convincing and powerful to warrant a waiver, and that such circumstances can arise at any time, including after the application is lodged.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that for the purposes of a Subclass 820 (Partner) visa, the applicant was to be considered as meeting criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.