Huynh (Migration)

The case concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought review of a decision by the Migration Review Tribunal (MRT) which had affirmed the delegate's refusal of the visa. The primary dispute revolved around whether the applicant and his sponsor were in a genuine and continuing spousal relationship, and whether certain Schedule 3 criteria were met.

The court was required to determine whether the applicant had established a genuine and continuing spousal relationship with his sponsor, particularly in light of the sponsor's previous marriage and the applicant's claims of family violence and relationship breakdown. Additionally, the court had to consider whether the applicant met the criteria for the child exception under Schedule 3, and whether compelling circumstances existed to waive the usual Schedule 3 requirements due to the applicant not holding a substantive visa at the time of application.

The court reasoned that the Tribunal had erred in its assessment of the genuine relationship, particularly by not adequately considering the corroborating oral evidence presented by witnesses at the hearing. The court also found that the applicant had established the child exception under Schedule 3, noting that the child did not need to be a biological offspring of the couple and that ongoing legal obligations in respect of the child were sufficient. Furthermore, the court determined that compelling circumstances were established for the waiver of Schedule 3 requirements.

Consequently, the court remitted the application for the visa to the Minister with a direction that the applicant met the criteria for a Subclass 820 visa under cl 820.211 and cl 820.221(3) of Schedule 2 to the Regulations.