Naidu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant in Naidu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs sought judicial review of the decision of the Administrative Appeals Tribunal affirming a decision of the Minister to refuse to grant him a partner visa. The applicant, a non-citizen, applied for a partner visa on 16 June 2017, more than 28 days after his Temporary Work (Skilled) visa ceased on 10 May 2017. The Tribunal found that the applicant did not satisfy Schedule 3 criterion 3001, as the application was not made within 28 days of when he last held a substantive visa, and was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria. The applicant challenged the Tribunal's decision on the basis that it was affected by jurisdictional error, specifically that the Tribunal failed to consider whether the length of the relationship was a compelling reason for not applying the Schedule 3 criteria. The applicant submitted that the length of the relationship constituted a compelling reason for the Tribunal not to apply criterion 3001 and that the Tribunal failed to consider this claim. The Minister submitted that the applicant did not advance any specific claim before the Tribunal that the length of the relationship constituted a compelling reason for the Tribunal not to apply criterion 3001.

The court found that the Tribunal was required to consider the claims and submissions that were expressly advanced by the applicant in relation to whether there were compelling reasons for not applying the Schedule 3 criteria as well as claims that emerge clearly on the material before the Tribunal. The length of the relationship may, of itself, amount to a compelling reason not to apply the Schedule 3 criteria. The Explanatory Statement that accompanied the proposed amendments to the Regulations that led to the introduction of the relevant cl 820.211(2)(d) of the Regulations provides that the waiver will be exercised only where there are reasons of a 'strongly compassionate' nature such as where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer. The Tribunal failed to consider the applicant's claim that the length of the relationship constituted a compelling reason for not applying the Schedule 3 criteria, and this amounted to a jurisdictional error.

The Court quashed the Tribunal's decision and remitted the matter to the Tribunal for reconsideration according to law. The Court found that the Tribunal's failure to consider the applicant's claim that the length of the relationship constituted a compelling reason for not applying the Schedule 3 criteria amounted to a jurisdictional error. The Court noted that the Explanatory Statement that accompanied the proposed amendments to the Regulations that led to the introduction of the relevant cl 820.211(2)(d) of the Regulations provides that the waiver will be exercised only where there are reasons of a 'strongly compassionate' nature such as where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer. The Court found that the Tribunal's failure to consider this claim amounted to a jurisdictional error. The Court quashed the Tribunal's decision and remitted the matter to the Tribunal for reconsideration according to law.