SINGH (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 and therefore was required to satisfy the Schedule 3 criteria unless compelling reasons existed for those criteria not to be applied. The Tribunal was required to determine whether the applicant met Schedule 3 criteria, specifically criterion 3001, and if not, whether there were compelling reasons to waive these criteria.

The Tribunal found that the applicant did not satisfy criterion 3001 of Schedule 3, as the application was lodged significantly more than 28 days after the applicant's last substantive visa expired. The 'relevant day' for the purpose of criterion 3001 was determined to be the last day the applicant held a substantive visa, which was 12 November 2011, while the application was lodged on 7 May 2016. Despite this failure to meet criterion 3001, the Tribunal considered whether compelling reasons existed to waive the Schedule 3 criteria.

The Tribunal reasoned that the expression 'compelling reasons' requires circumstances sufficiently convincing to warrant a waiver. In this case, the applicant had a newborn Australian child with the sponsor, born approximately 11 months prior to the decision. The Tribunal found that requiring the applicant to either take the child away from its mother or leave the child in Australia presented serious consequences for both the child and the parents, constituting a situation of a strongly compassionate nature and thus compelling enough to waive the Schedule 3 criteria.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria specified in cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.