Yuan (Migration)

The applicant, a 41-year-old man from Taiwan, sought review of a decision concerning his application for a Partner (Temporary) (Class UK) visa, Subclass 820. The central dispute revolved around whether the applicant met the Schedule 3 criteria for the visa, or if there were compelling reasons for these criteria not to be applied. The applicant had remained in Australia after his last substantive visa expired in October 2016, and his subsequent visa application was made more than three years later, meaning he did not meet the 28-day requirement of Schedule 3 criterion 3001. The matter was heard by Tegen Downes.

The court was required to determine two primary legal issues. Firstly, whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which mandates that an application be lodged within 28 days of the relevant day, defined as the last day a substantive visa was held. Secondly, if the applicant did not meet this criterion, the court had to consider whether there were "compelling reasons" for the Minister to be satisfied not to apply these criteria, as permitted by clause 820.211(2)(d) of Schedule 2 of the Regulations.

The court found that the applicant did not meet the Schedule 3 criteria because his application was lodged significantly outside the 28-day timeframe. However, the court considered the meaning of "compelling reasons" as established in jurisprudence, requiring circumstances sufficiently powerful to drive a decision-maker to a particular conclusion. While the applicant presented evidence of his sponsor's and young adult son's mental health issues and their dependence on him for emotional and financial support, the court determined that these factors, in themselves, were not sufficient to constitute "compelling reasons" to waive the Schedule 3 criteria. The court noted that the decision under review was made without a hearing.

Consequently, the Tribunal remitted the application for the Partner (Temporary) (Class UK) visa, with a direction that the applicant meets criterion 820.211(2)(d) of Schedule 2 to the Regulations, allowing for further consideration of the remaining visa criteria.