1802245 (Migration)

The applicant sought review of a decision by the Minister to refuse to grant a Partner (Temporary) (Class UK) visa, subclass 820. The applicant was not the holder of a substantive visa at the time of application and was therefore an unlawful non-citizen. The Minister had determined that there were not compelling reasons for a Schedule 3 waiver, which would have been necessary for the application to proceed. The applicant contended that the relationship was genuine and subsisting at the time of application, and that compelling reasons existed for the waiver.

The primary legal issues before the court were whether the applicant's relationship with the sponsor was genuine and subsisting at the time of the visa application, and whether there were compelling reasons to waive the Schedule 3 criteria, given the applicant's status as an unlawful non-citizen at the time of application. The court was required to consider the applicant's motivation at the inception of the relationship and the subsequent development of a genuine and loving relationship, as well as the sponsor's health condition.

The court found that the Minister's assessment of the "compelling reasons" for a Schedule 3 waiver was flawed. While acknowledging the applicant's unlawful status, the court considered that the Minister had not adequately weighed the evidence demonstrating the genuine and loving nature of the spousal relationship, particularly in light of the sponsor's significant health condition. The court concluded that the decision under review was affected by an error of law and remitted the matter to the Minister for redetermination.