SONI (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 lodgement. The Administrative Appeals Tribunal was required to determine whether the applicant met the Schedule 3 criteria or if there were compelling reasons for these criteria to be waived.

The primary legal issue was whether the applicant satisfied Schedule 3 criteria, specifically criterion 3001, which requires an application to be lodged within 28 days of the "relevant day." The Tribunal also considered the meaning of "compelling reasons" for waiving these criteria, as defined by case law. The applicant's substantive visa, a TU-573 student visa, expired on 16 August 2016, and the partner visa application was lodged on 28 November 2016.

The Tribunal found that the applicant did not satisfy criterion 3001 as the application was lodged more than 28 days after the expiry of her last substantive visa. Consequently, the Tribunal was not required to assess the remaining Schedule 3 criteria. The Tribunal then considered whether there were compelling reasons to waive the Schedule 3 criteria. While acknowledging the applicant's personal circumstances, including her relationship with her husband, inter-caste marriage, and fear of harm based on their different religions, the Tribunal concluded that these factors, as presented, did not constitute "compelling reasons" in the legal sense, which requires circumstances sufficiently powerful to move a decision-maker to exercise discretion.

Ultimately, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant be taken to meet criterion 820.211(2)(d)(ii) of Schedule 2 to the Regulations, allowing for further assessment of the remaining visa requirements.