SINGH (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant who did not hold a substantive visa at the time of application. The Administrative Appeals Tribunal was required to determine whether the applicant met the Schedule 3 criteria, or if there were compelling reasons for those criteria not to be applied.

The primary legal issue before the Tribunal was whether the applicant satisfied criterion 3001 of Schedule 3, which requires an application to be lodged within 28 days of the "relevant day." The Tribunal found that the applicant last held a substantive visa on 7 January 2014, which constituted the "relevant day" for the purposes of the criterion. As the application was not lodged within 28 days of this date, the applicant failed to satisfy criterion 3001. Consequently, the Tribunal had to consider whether there were compelling reasons to waive this requirement.

The Tribunal reasoned that "compelling reasons" must be sufficiently convincing and powerful to warrant waiving the Schedule 3 criteria. Such reasons can arise at any time, including after the visa application is lodged. In this instance, the Tribunal concluded that the applicant did not meet the Schedule 3 criteria and remitted the application for reconsideration by the Minister, with a direction that the applicant met criterion 820.211(2)(d)(ii) of Schedule 2.