Trinh (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), made by an applicant who did not hold a substantive visa at the time of application. The case was heard by Carmel Morfuni, a Member of the Tribunal. The central dispute revolved around whether the applicant met the Schedule 3 criteria for the visa, or if there were compelling reasons to waive these criteria.

The primary legal issue before the Tribunal was whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, or if compelling reasons existed for the Minister to waive these requirements. Regulation 820.211(2)(d) of the Migration Regulations 1994 stipulates that an applicant not holding a substantive visa must satisfy Schedule 3 criteria unless the Minister is satisfied that compelling reasons exist for not applying them. The applicant's substantive visa had expired on 19 March 2013, and the application was lodged on 21 September 2015, which was significantly outside the 28-day timeframe stipulated by criterion 3001.

The Tribunal found that the applicant did not meet criterion 3001 as the application was lodged more than 28 days after the expiry of her last substantive visa. However, the Tribunal also noted that the applicant had given birth to a child in Australia. This fact was considered a compelling circumstance that warranted the waiver of the Schedule 3 criteria. The Tribunal applied the principle that while threshold criteria must generally be met, compelling reasons can justify a waiver.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant was deemed to meet criterion cl.820.211(2)(d) of Schedule 2 to the Regulations, effectively waiving the Schedule 3 requirements due to compelling circumstances.