Tran (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa (Subclass 820) by an applicant who had breached the conditions of a Bridging Visa E by travelling to Vietnam. The applicant did not hold a substantive visa at the time of application, meaning that Schedule 3 criteria of the Migration Regulations 1994 applied unless compelling reasons existed for their waiver. The decision was made by Russell Matheson, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria set out in Schedule 3 of the Migration Regulations 1994, specifically criterion 3001, and if not, whether there were compelling reasons to waive these criteria. Criterion 3001 requires that an application for a visa be lodged within 28 days of the "relevant day," which is defined by reference to the last day the applicant held a substantive visa. The Tribunal also considered the meaning of "compelling reasons" in the context of waiving Schedule 3 criteria, noting that such reasons must be sufficiently convincing and the circumstances powerful enough to justify the waiver.

The Tribunal found that the applicant did not satisfy criterion 3001 of Schedule 3 because the visa application was lodged on 5 May 2017, significantly more than 28 days after the applicant's last substantive visa was cancelled on 23 June 2014. The Tribunal noted that the expression "compelling reasons" is not defined but requires circumstances sufficiently convincing to move the decision-maker to exercise discretion, citing established case law. While the applicant's travel to Vietnam and reliance on the sponsor for support were presented as potential compelling reasons, the Tribunal determined that the failure to meet the threshold of criterion 3001 was determinative.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, as the applicant failed to satisfy the applicable Schedule 3 criteria and no compelling reasons were found to waive them.