Siyaguna Kosgodage (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa by an applicant who did not hold a substantive visa at the time of application. The dispute before the Tribunal was whether the applicant met the Schedule 3 criteria for the visa, or if there were compelling reasons to waive these criteria.

The primary 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. Schedule 3 criteria apply to applicants who do not hold a substantive visa at the time of their application, requiring them to meet certain conditions unless the Minister is satisfied that compelling reasons exist for waiving these criteria.

The Tribunal found that the applicant did not satisfy criterion 3001, which requires an application to be lodged within 28 days of the "relevant day." The applicant's migration history indicated that her last substantive visa, a Subclass 600 Visitor visa, ceased on 1 November 2015. Her current visa application was lodged on 19 May 2016, which was more than 28 days after the cessation of her last substantive visa. As the applicant failed to meet this criterion, the Tribunal then considered whether there were compelling reasons to waive the Schedule 3 criteria. The Tribunal noted that "compelling reasons" are not defined but must be sufficiently convincing and powerful to lead a decision-maker to exercise discretion to waive the criteria, citing established case law.

Ultimately, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa, concluding that the applicant did not meet the necessary criteria for the grant of the visa.