(a) the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

(ii) the holder of an entry permit that was not valid beyond 31 August 1994;

(c) the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b) (ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

(d) there are compelling reasons for granting the visa; and

(e) the applicant complied substantially with any conditions subject to which the last entry permit (if any) was granted (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

(f) the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b) (ii), if the applicant had applied for the entry permit on 31 August 1994; and

(g) the applicant intends to comply with any conditions subject to which the visa is granted; and

(h) the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

(a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

(d) there are compelling reasons for granting the visa; and

(e) the applicant complied substantially with any conditions subject to which the last entry permit or visa (if any) was granted (other than a condition of which the applicant was in breach solely because the entry permit or visa ceased to be in effect); and

(i) in the case of an applicant referred to in paragraph (a) - the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

(ii) in the case of an applicant referred to in paragraph (b) - the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

(g) the applicant intends to comply with any conditions subject to which the visa is granted; and

(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

24. The visa application was validly made within 28 days after the relevant day as defined in subclause 3001(2), which in this case is 18 September 1998 (the last day the visa applicant ceased to hold a substantive visa). The visa applicant therefore satisfies criterion 3001.

25. Criterion 3003 is not applicable to the visa applicant's circumstances as he has been the holder of a substantive visa after 1 September 1994.

26. Criterion 3004 applies to the visa applicant because he ceased to hold a substantive visa after 1 September 1994. In order to find that this criterion is met, the Tribunal must be satisfied, in part, that the visa applicant was not the holder of a substantive visa at time of application because of factors beyond his control, and that there are compelling reasons for granting the visa. Alternatively, the Tribunal may waive the requirement for the visa applicant to satisfy criterion 3004 in accordance with paragraph 820.211(2)(d)(ii), if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

27. In policy, `compelling reasons' refer to reasons of a `strongly compassionate nature'. Also, as a matter of policy, the waiver is to be exercised in limited circumstances such as where the couple have been in a genuine and continuing relationship for two years or longer, or there are Australian citizen children from the relationship (see MSI-161).

28. The last substantive visa held by the visa applicant expired on 18 September 1998. The Tribunal finds that the visa applicant did not hold a substantive visa when he lodged his visa application on 21 September 1998.

29. The visa applicant has given conflicting reasons for lodging the visa application after his substantive visa expired on 21 September 2001. In the application for review the visa applicant's representative submitted that the visa applicant was not well educated and did not appreciate the absolute requirements of the regulations. The representative stated that the visa applicant "instructed the agent to submit the application too late (not having sufficient funds to pay for the application fees and agent fees)". At the hearing the visa applicant told the Tribunal that he did not know that his visa had expired and that he relied on his solicitor's advice. The nominator submitted that they had difficulties in raising the money to pay for the solicitor and they were a couple of days late in lodging the visa application as a result. The visa applicant submitted a letter from his representative, David Nguyen, a registered migration agent who advised that the delay in the lodgement of the visa application was his responsibility. He stated that he received the money for his fees and the application fee on 3 September 1998 but he did not receipt the money until 20 September 1998. If the visa applicant lodged the visa application after his substantive visa expired because he did not have the money to do so earlier, the Tribunal considers that this would not constitute factors beyond his control. Although the visa applicant's representative originally submitted that this was the reason for the visa applicant lodging the visa application after his substantive visa expired, it is not the reason he gave in the most recent letter to the Tribunal. The visa applicant submitted to the Tribunal at the hearing that the fault lay with his representative, which the letter from the representative corroborates. The Tribunal considers that such reasoning would indicate that the visa applicant was aware of the need to lodge his visa application before his substantive visa expired and as such instructed his representative accordingly. The Tribunal considers that the visa applicant could have checked whether his representative had lodged the visa application before his visa expired or he could have instructed his representative sooner to ensure that the visa application was lodged in time. The Tribunal is not satisfied that the visa applicant was not the holder of a substantive visa because of factors beyond his control.

30. As the visa applicant does not meet the Schedule 3 criteria which apply in his case, the Tribunal must now consider whether, in accordance with subparagraph 820.211(2)(d)(ii), there are compelling reasons for not applying these criteria. This requirement must be met at the time of application.

31. The term `compelling' is not defined in the legislation. According to the Macquarie Dictionary, "compelling" means "to force or drive, especially to a course of action". The Explanatory Memorandum to the Statutory Rules 1996 No 75, which introduced this provision states as follows:

The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.

It is expected that the waiver will be exercised only where there are reasons of a "strongly compassionate" nature such as:

where there are Australian-citizen children from the relationship; or

where the applicant and his or her nominator are already in a long-standing relationship which has been in existence two years or longer.

In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.

32. What amounts to compelling reasons in each case is a question of fact, having regard to all the circumstances of the case. The explanatory memorandum (and PAM3 which adopts the language of the Explanatory Memorandum) make it clear that the listed reasons are not the only cases in which there may be compelling reasons for waiving the Schedule 3 criteria.

33. The expression `compelling reasons' involves something in addition to the basic pre-requisite criteria for the grant of the visa (Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204). Hence an assessment of a relationship as genuine at the time of application would not, of itself, be sufficiently compelling to justify not applying the Schedule 3 criteria. Nor, on the same reasoning, would it be sufficient that at the time of decision the visa applicant was in a genuine spousal relationship or met the criteria for a subclass 820 visa in one of the ways contemplated in subclauses 820.221(2) or 820.221(3). It is necessary to consider all the circumstances of the particular case. The Tribunal is entitled, as a matter of law, to take into account circumstances falling outside those mentioned in guidelines or policy.

34. The Tribunal has had regard to all the information in the Department and Tribunal files and to the evidence given at the hearing and has considered each of the suggested reasons individually and in combination. The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. The Tribunal finds that the applicant and the nominator do not have children. On the evidence before it the Tribunal is not satisfied that, at the time of application, the visa applicant and the nominator had been in a relationship which was in existence for two years or longer. The visa application was lodged on 21 September 1998. The visa applicant arrived in Australia on 18 December 1997 and claimed that he was introduced to the nominator and that they started to live together on 26 April 1998 and married on 26 April 1998. The Tribunal is not satisfied that the period of the relationship prior to the time of application constitutes compelling reasons not to apply the schedule 3 criteria. Policy must not be applied inflexibly, however the Tribunal is not satisfied that the period of the relationship between the parties at the time of application is sufficient to amount to a compelling reason for waiving the legislative requirements.

35. The visa applicant has submitted that the reason for lodging the visa application after his visa had expired was a reason for not applying the schedule 3 criteria. The visa applicant has submitted that his representative was responsible for the delay. The Tribunal has found that this indicates that the visa applicant was aware of the requirement to lodge the visa application before his visa expired and that he could have checked that his representative had lodged the visa application in time. The Tribunal is not satisfied that the reason for lodging the visa application after his visa had expired does not constitute a compelling reason for not applying schedule 3 criteria.

36. The visa applicant and the nominator have also submitted that their financial position is another reason for not applying the schedule 3 criteria. The Tribunal considers that the nominator is able to work or could receive social security payments. The Tribunal is not satisfied that their financial position is such as to constitute a compelling reason for not applying the Schedule 3 criteria (the effect of which would be to mean that the visa applicant would have to leave Australia for the lodgement and processing of an offshore spouse application).

37. The visa applicant's representative has submitted that the visa applicant and the nominator have been through difficult times together and that the circumstances of the nominator's miscarriage were very unfortunate. He also submitted that the visa applicant and the nominator rely on each other emotionally and psychologically and that the nominator has been relying on the visa applicant to raise her two children. The Tribunal accepts that the visa applicant and the nominator experienced difficulties relating to the miscarriage. The Tribunal accepts that the visa applicant and the nominator rely on one another. The Tribunal notes that at the time of application, the nominator's daughters were 17 and 19 years of age. The Tribunal is not satisfied that the difficult times that the visa applicant and the nominator have been through together, including the miscarriage or their reliance on each other constitutes compelling reasons. A reliance on one another emotionally and psychologically is a factor that would be common to many applicants in this situation. However, the provision in subparagraph 820.211(2)(b)(ii) is clearly framed as an exception, which means that the intention is not that it applies to the majority of cases. The Tribunal is not satisfied that these factors constitute compelling reasons.

38. The Tribunal has also considered the combination of circumstances raised in this matter but is not satisfied that either individually or in combination the circumstances constitute compelling reasons not to apply schedule 3 criteria. The Tribunal is satisfied that the visa applicant does not meet paragraph 820.211(2)(d).

39. Given these findings, and earlier observations in respect of the other subclasses, the Tribunal has no alternative but to affirm the decision under review. The visa applicant does not meet essential criteria for the grant of a Class TK visa.

40. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of an Extended Eligibility (Temporary) (Class TK) visa.