Verma (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 application. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the Schedule 3 criteria for the visa, and if not, whether there were compelling reasons to waive those criteria.

The primary legal issues before the Tribunal were whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, and if not, whether the circumstances presented constituted "compelling reasons" for the waiver of these criteria. The Tribunal noted that an applicant without a substantive visa must satisfy Schedule 3 criteria unless the Minister is satisfied that compelling reasons exist for not applying them. The Tribunal found that the applicant did not satisfy criterion 3001 as the application was lodged more than 28 days after the applicant's last substantive visa ceased.

The Tribunal considered the meaning of "compelling reasons," referencing case law that indicates such reasons must be sufficiently convincing and powerful to justify waiving the criteria. While the applicant's specific circumstances, including family health issues, bereavement, the impact of COVID-19 on travel to India, and the family's practical reliance on the applicant, were presented as potential compelling reasons, the Tribunal's decision focused on the procedural aspect of the Schedule 3 criteria. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant be taken to meet criterion cl.820.211(2)(d) of Schedule 2 to the Regulations, which pertains to the waiver of Schedule 3 requirements.