Wang (Migration)

The Administrative Appeals Tribunal considered an application by an applicant for a Partner (Temporary) (Class UK) visa, subclass 820 (Spouse). The central dispute concerned whether the applicant met the Schedule 3 criteria, or if compelling circumstances warranted a waiver of these criteria, given the applicant did not hold a substantive visa at the time of application.

The Tribunal was required to determine if the applicant satisfied criterion 3001 of Schedule 3, which mandates that an application be lodged within 28 days of the "relevant day." The Tribunal also had to consider whether compelling reasons existed to waive the Schedule 3 criteria if they were not met. The meaning of "compelling reasons" was informed by case law, requiring circumstances sufficiently convincing to move the decision-maker to exercise discretion.

The Tribunal found that the applicant did not satisfy criterion 3001 as the application was lodged approximately eight months after the applicant's last substantive visa ceased. While acknowledging the longevity and genuineness of the relationship, and the marriage, the Tribunal concluded that these factors alone did not constitute compelling reasons to waive the Schedule 3 criteria. Crucially, there was no evidence presented of anticipated emotional or financial hardship that would arise from separation if the visa application were refused.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa.