Al Ali (Migration)

The applicant, Al Ali, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to affirm the refusal of her Partner (Temporary) (Class UK) visa, Subclass 820. The primary dispute concerned the applicant's failure to meet Schedule 3 criteria, which require compelling reasons for a waiver when an application is lodged outside the prescribed timeframe.

The Federal Court was required to determine whether the delegate’s decision to refuse the visa, by not granting a waiver of the Schedule 3 criteria, was affected by jurisdictional error. This involved considering whether the delegate adequately assessed the compelling reasons put forward by the applicant, including the genuineness and long-standing nature of her relationship with her sponsor, the sponsor's medical condition, the financial impact of the applicant's absence, and the complexities arising from their mixed-faith relationship, further compounded by the COVID-19 pandemic.

Justice Crawshay found that the delegate had failed to properly consider the cumulative effect of the compelling reasons presented by the applicant. The delegate’s assessment was found to be superficial and did not engage with the evidence in a meaningful way, particularly concerning the impact of the sponsor's medical condition and the financial consequences of the applicant's prolonged separation. The court held that the delegate’s reasoning did not demonstrate a proper understanding of the criteria for a Schedule 3 waiver, leading to a jurisdictional error.

The court ordered that the decision of the delegate be set aside and remitted to the Minister for redetermination according to law.