2016341 (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Residence) (Class BS) visa. The applicant had applied for the visa on the basis of a relationship with their sponsor, who subsequently withdrew their sponsorship due to the breakdown of the relationship. The applicant was invited to comment on this information and was later advised by their migration agent that the delegate should proceed with the refusal, with further action to be sought by way of Ministerial intervention.

The primary legal issue before the court was whether the applicant met the criteria for the grant of a Partner (Residence) visa, specifically Clause 801.221(2)(c) of the Migration Regulations, which requires the applicant to be the spouse or de facto partner of their sponsoring partner at the time of the decision. The court also considered the applicant's submissions regarding compassionate circumstances and the criteria for Ministerial intervention, including whether there were strong compassionate circumstances that, if not recognised, would result in serious, ongoing, and irreversible harm, or circumstances related to the applicant's age, health, or psychological state, or unintended consequences of legislation.

The court reasoned that the applicant's application for the partner visa must fail because the relationship with the sponsor had broken down, and therefore the applicant was no longer the spouse or de facto partner of the sponsor at the time of the decision. While the court acknowledged the potential for inconvenience and stress if the applicant were required to depart Australia, it did not assess that there were strong compassionate circumstances that would result in serious, ongoing, and irreversible harm. The court also found that the applicant's age, health, or psychological state did not meet the threshold for serious, ongoing, and irreversible harm, nor were there any unintended consequences of legislation leading to unfair or unreasonable results. Furthermore, the court determined that the applicant was not prevented from returning to their country of citizenship or usual residence due to circumstances outside their control, despite the challenges posed by COVID-19.

The court affirmed the delegate's decision to refuse the visa.