Zheng (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 core dispute revolved around whether the applicant had "compelling reasons" for the waiver of Schedule 3 criteria, specifically criterion 3001, which requires applications to be lodged within 28 days of the relevant day. The Tribunal was required to determine if the applicant met this criterion or if compelling reasons existed to excuse non-compliance.

The legal issues before the Tribunal were whether the applicant satisfied the Schedule 3 criteria, and if not, whether there were "compelling reasons" for not applying those criteria. The applicant did not dispute that they did not hold a substantive visa at the time of application. The Tribunal first considered criterion 3001, which mandates that an application be lodged within 28 days of the "relevant day." The Tribunal found, based on the evidence, that the application was not lodged within this timeframe, meaning the applicant did not satisfy criterion 3001. Consequently, the Tribunal was then obliged to assess whether compelling reasons existed to waive this requirement.

The Tribunal interpreted "compelling reasons" as circumstances sufficiently convincing to warrant a waiver of the requisite criteria, drawing on established case law such as *MZYPZ v MIAC* and *Babicci v MIMIA*. The Tribunal noted that such reasons could arise at any time, even after the application was lodged, as per *Waensila v MIBP*. The applicant had presented evidence of a genuine, long-standing relationship with the sponsor, including details about children from previous relationships and the sponsor's mental health and financial dependence. While these factors were considered in relation to the existence of compelling reasons, the decision ultimately focused on the failure to meet the 28-day lodgement requirement under criterion 3001.

Given the findings, the Tribunal remitted the application for reconsideration by the Minister. The direction was that the first named applicant met criterion cl 820.211(2)(d) of Schedule 2 to the Regulations, indicating that the matter should proceed to consider the remaining criteria for the Subclass 820 visa.