Tran (Migration)

The Administrative Appeals Tribunal considered 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 central dispute concerned whether the applicant met the Schedule 3 criteria, specifically criterion 3001, or if there were compelling reasons for the Minister to waive these criteria.

The Tribunal was required to determine if the applicant satisfied Schedule 3 criteria 3001, 3003, and 3004, as mandated by regulation 820.211(2)(d)(ii), unless compelling reasons existed for their non-application. The applicant's last substantive visa expired on 30 August 2017, and the partner visa application was lodged on 12 October 2018, which was outside the 28-day timeframe stipulated by criterion 3001 for lodging the application after the cessation of the last substantive visa.

The Tribunal reasoned that the applicant did not meet criterion 3001 because the application was lodged significantly after the relevant day. Consequently, the Tribunal then considered whether compelling reasons existed for not applying the Schedule 3 criteria. Drawing on case law, the Tribunal understood "compelling reasons" to mean circumstances sufficiently powerful to irresistibly drive a decision-maker to waive the criteria. The Tribunal concluded that the matter should be remitted for reconsideration, with a direction that the applicant met criterion 820.211(2)(d)(ii) of Schedule 2 to the Regulations.