Wang (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) (Subclass 820) visa by Mr Xiaolong Wang Ye. The applicant did not hold a substantive visa at the time of his application, which was lodged on 31 August 2016, after his last substantive visa ceased on 17 August 2016. The primary dispute before the Tribunal was whether the applicant met the Schedule 3 criteria, or if there were compelling reasons for these criteria to be waived.

The legal issues before the Tribunal were twofold: firstly, whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which requires an application to be lodged within 28 days of the "relevant day"; and secondly, if the applicant failed to meet these criteria, whether there were compelling reasons for the Minister to waive them. The Tribunal noted that the applicant did not satisfy criterion 3001 as his application was lodged more than 28 days after his last substantive visa ceased.

The Tribunal considered the meaning of "compelling reasons" as requiring circumstances sufficiently convincing and powerful to warrant a waiver of the Schedule 3 criteria, referencing established case law. While the applicant failed to meet criterion 3001, the Tribunal found that the matter should be remitted for reconsideration. This was because the Tribunal directed that the applicant met criterion cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations, implying that the assessment of compelling reasons for waiving Schedule 3 criteria was to be undertaken by the Minister.

Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa to the Minister for reconsideration, with the direction that the applicant met the specified criterion.