YAN (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant did not hold a substantive visa at the time of application and therefore was required to satisfy the Schedule 3 criteria, unless compelling reasons existed for those criteria not to be applied. The Tribunal was required to determine whether the applicant met the Schedule 3 criteria or if there were compelling reasons to waive them.

The primary legal issue was whether the applicant satisfied Schedule 3 criteria 3001, 3003, and 3004, or if compelling circumstances justified the waiver of these criteria. Criterion 3001 required the visa application to be lodged within 28 days of the applicant’s last substantive visa ceasing to be in effect. The applicant’s last substantive visa was cancelled on 17 June 2016, and the Partner visa application was filed more than five months later, meaning criterion 3001 was not met.

The Tribunal reasoned that as the applicant failed to meet criterion 3001, it was necessary to consider whether compelling reasons existed for not applying the Schedule 3 criteria. The Tribunal noted that "compelling reasons" are not defined but must be sufficiently convincing and powerful to warrant a waiver. The applicant's student visa had been cancelled because she ceased studying, a condition of her visa, and she had not engaged with the Department regarding this non-compliance. The Tribunal found no evidence of compelling circumstances that would justify waiving the Schedule 3 criteria.

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