Abdelsayed v Minister for Immigration

In *Abdelsayed v Minister for Immigration*, Dowdy J considered an application for judicial review of a decision by the Minister for Immigration to refuse to waive Schedule 3 of the Migration Regulations 1994. The applicant sought to have Schedule 3 waived in relation to his partner visa application, arguing that compelling compassionate and humanitarian reasons existed. The Minister's delegate had refused to waive Schedule 3, taking into account the applicant's extensive and problematic immigration history, including periods of unlawful status and numerous unmeritorious visa applications.

The central legal issue before the court was whether the delegate had erred in law by failing to properly consider the compelling reasons put forward by the applicant's sponsor, and whether the delegate's adverse assessment of the applicant's immigration history was reasonable and properly taken into account. Specifically, the court had to determine if the sponsor's stated concerns about financial hardship and difficulties in falling pregnant constituted compelling reasons for a waiver, and if these reasons were outweighed by the applicant's immigration history as assessed by the delegate.

Dowdy J reasoned that while the sponsor's statutory declaration did raise concerns about financial difficulties and potential infertility, these were not necessarily "compelling" in the context of Schedule 3 waiver provisions. Crucially, the court noted that the sponsor's earlier statements indicated that the decision to marry and remain in Australia was influenced by advice received from the Department of Immigration regarding the applicant's ability to lodge an application onshore without returning to Egypt. This suggested that the financial and pregnancy concerns raised later were not the primary or sole drivers for the applicant's continued presence in Australia. The delegate's adverse assessment of the applicant's immigration history, which included prolonged periods of unlawful status and the lodging of numerous applications that did not succeed, was found to be a relevant and significant factor that the delegate was entitled to consider. The court concluded that the delegate had not erred in law in their assessment of the compelling reasons and the applicant's immigration history.